NLRB's Acting General Counsel Issues Second Report on Social Media Cases

On January 24, 2012, the National Labor Relation Board’s ("Board") Acting General Counsel (AGC) issued his second report in the last six months regarding employers who discipline their employees for utilizing social media, such as Facebook, to vent about their workplace. The AGC is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the Board field offices in the processing of cases.

The AGC's latest report ("Report"), which can be found on the NLRB's website, confirms the AGC's commitment to continue prosecuting unfair labor practice charges involving employers who terminate or discipline employees for using social media to vent about their wages, benefits and working conditions. Notably, whether an employee is a member of a union is irrelevant, as the NLRA protects all workers, not just those who are organized by a union. The Report also confirms the AGC's willingness to pursue employers who have implemented what the AGC perceives to be overly broad social media policies. The AGC reasons that an overly broad policy, in and of itself, violates the NLRA because it precludes employees from exercising their rights to engage in protected, concerted activity.

The Report covers 14 cases, half of which involve questions about employer's social media policies. Notably, the AGC concluded that five of the social media polices were unlawfully broad.

This Report underscores three main points:

• All employees, including those who are not represented by a union, have rights under the NLRA.
• Posting statements on social media websites that (a) involve or are directed at more than one employee and (b) concern terms and conditions of employment, may constitute protected conduct under the NLRA.
• Employer policies that seek to restrict employee's posting on social media websites should avoid using overly broad language, ambiguous words and undefined terms, particularly those aimed at preventing employees from criticizing their company, their supervisors, their pay or other terms and conditions of employment. Instead, the policies should be drafted in a way such that a “reasonable” employee would understand the type of conduct which is permitted (concerted activity regarding terms and conditions of employment) and is not permitted (vulgar, obscene, threatening, intimidating, harassing and/or unlawful discriminatory comments).

It is important to keep in mind that the 35-page report represents the AGC’s interpretation of the NLRA, rather than decisions by the Board; whether the Board, and ultimately the federal courts, will adopt the AGC's position remains to be seen. Nonetheless, given the AGC's position on employees' use of social media, employers should consider implementing, or revising, their policies and procedures regarding the use of social media, and carefully consider how to deal with employees who may have used social media in ways the employer does not appreciate.