Employees' Use of Social Media and the NLRA Toolkit
Resources to help employers comply with legal requirements of the National Labor Relations Act (NLRA) when restricting employees' use of social media or disciplining employees for using social media.
Employees are increasingly using various types of social media to discuss workplace issues, ranging from generalized gripes about their jobs to specific criticism of supervisors and working conditions. Employers are naturally inclined to respond these comments and complaints, but with little legislation, court precedent or agency guidance to rely on, employers face a challenge to understand how they may lawfully regulate their employees' social media use. The National Labor Relations Board ( www.practicallaw.com/3-501-8649) (NLRB), which enforces the National Labor Relations Act ( www.practicallaw.com/2-382-3640) (NLRA), became the first federal agency to decide how employees' social media use fits in existing labor and employment laws. The NLRB made national headlines in late 2010 when its Office of the General Counsel instructed an NLRB regional office to prosecute an unfair labor practice ( www.practicallaw.com/5-507-5808) (ULP) complaint against an employer that disciplined an employee for posting comments critical of her supervisor on Facebook allegedly in violation of the company's internet and blog posting rule (see NLRB Gen. Counsel Advice Mem. Case No. 34-CA-12576, Am. Med. Response of Conn., Inc., (Oct. 5, 2010)). The NLRB considered the posting protected concerted activity ( www.practicallaw.com/8-502-9594) . The case ultimately settled, but the media attention spurred:
Many more employees, both unionized ( www.practicallaw.com/2-502-9592) and nonunionized, to file ULP charges with the NLRB challenging:
employers' social media-related policies; and
discipline that employers imposed for employees' social media use.
The NLRB's then Acting General Counsel to:
require that NLRB regional directors submit all ULP charges about employer rules and discipline related to social media to the NLRB Division of Advice in the NLRB Office of General Counsel so the NLRB could develop prosecutorial standards for these types of cases ( NLRB Gen. Counsel Mem. 11-11, Mandatory Submissions to Advice, 2011 WL 3348287 (Apr. 12, 2011), ); and
issue three reports summarizing the NLRB General Counsel's Office's guidance on which social media-related ULP charges against employers the NLRB regional directors should prosecute (NLRB Gen. Counsel Opers. Mem. 11-74, Report of the Acting Gen. Counsel Concerning Social Media Cases, 2011 WL 11718018 (Aug. 18, 2011), NLRB Gen. Counsel Opers. Mem. 12-31, Report of the Acting General Counsel Concerning Social Media Cases, 2012 WL 10739276 (Jan. 24, 2012) and NLRB Gen. Counsel Opers. Mem. 12-59, Report of the Acting Gen. Counsel Concerning Social Media Cases, 2012 WL 10739277 (May 30, 2012)).
The NLRB's Office of the General Counsel continues to issue advice memoranda providing insights about why the NLRB does or does not prosecute various social media-related ULP charges. The panel (Board) heading the NLRB's judicial functions is issuing binding precedent that adopts or rejects the NLRB General Counsel's ULP analysis and defines the rights of:
Employers to regulate employees' use of social media.
Employees to engage in protected concerted activity on social media.
This Toolkit provides resources to assist employers in:
Understanding these significant developments.
Developing policies and practices to:
reduce chances of facing NLRB ULP litigation; and
comply with the NLRA, as the Board refines its precedent in this developing area of law.
Webinar: Employment Practices Facing NLRB Scrutiny ( www.practicallaw.com/1-522-4914) (featuring the NLRB’s then Acting General Counsel)
Social Media Policy Prohibiting Photos of Security Employees in Uniform and Parts of Confidentiality Rule Unlawful: NLRB ( www.practicallaw.com/w-003-2775) (G4S Secure Solutions, August 26, 2016)
Work Rules Restricting Disclosure of Company Information in Handbook and Confidentiality Agreement Violated NLRA: NLRB ( www.practicallaw.com/w-002-6127) (Schwan's Home Serv., Inc., June 10, 2016)
Acceptable Use, Pro-Cooperation, and Recording Device Policies Are Unlawful: NLRB ( www.practicallaw.com/w-002-2050) (T-Mobile USA, Inc., April 29, 2016)
Rule Prohibiting Recording in the Workplace Without Prior Management Approval Unlawful: NLRB ( www.practicallaw.com/w-001-1268) (Whole Foods Market, Inc., December 24, 2015)
DC Circuit Does Not Endorse NLRB's Analysis of Confidentiality Instructions During Workplace Investigations ( www.practicallaw.com/w-000-7521) (Hyundai America Shipping Agency, Inc. v. NLRB, November 6, 2015)
Camera Ban and Confidentiality Rule Are Unlawfully Overbroad: NLRB ( www.practicallaw.com/7-618-5428) (Caesars Entertainment (Rio All-Suites Hotel & Casino), August 27, 2015)
Employer Did not Repudiate Overbroad Social Media and Dress Code Policies: NLRB ( www.practicallaw.com/8-611-4685) (Boch Imports, Inc., April 30, 2015; Update June 17, 2016)
NLRB Finds that Social Media Policy in Employee Handbook Did Not Violate the NLRA ( www.practicallaw.com/2-609-4845) (Landry's Inc., April 16, 2015)
Union Not Responsible for Inflammatory Posts by Members on Union’s Private Facebook Page: DC Circuit ( www.practicallaw.com/2-609-5538) (Weigand v. NLRB, April 17, 2015)
Overbroad Confidentiality Rule and Other Handbook Policies Unlawful: NLRB ( www.practicallaw.com/5-607-8085) (Lily Transportation Corp., March 30, 2015)
Overbroad Social Media Policy Unlawful with Certain Exceptions: NLRB General Counsel's Office ( www.practicallaw.com/9-607-7965) (Released: March 31, 2015; Issued: January 6, 2014)
Employee's Facebook Post Hurling Obscenities at Manager Was Protected Activity: NLRB ( www.practicallaw.com/6-607-6806) (Pier Sixty LLC, March 31, 2015)
NLRB General Counsel Red Flags Common Terms in Employment Rules ( www.practicallaw.com/2-605-1365) (Issued: March 18, 2015 )
Business-only E-mail Rules are Presumptively Unlawful, Restrain Employees' New Rights to Use Company E-mail for Section 7 Activity: NLRB ( www.practicallaw.com/4-592-3325) (Purple Communications, Inc., December 11, 2014)
NLRB Rubber-stamps Noel Canning-invalidated Facebook Decision; Complaints about Supervisor Protected; Entrapment Defense Disregarded ( www.practicallaw.com/4-587-1326) (Design Technology Group LLC dba Bettie Page Clothing, October 31, 2014)
Rescinding Employment Offer for Insubordinate Facebook Posts Lawful: NLRB ( www.practicallaw.com/4-586-4986) (Richmond District Neighborhood Ctr., October 28, 2014)
Requiring Blog Post Viewpoint Disclaimer Lawful; Handbook Confidentiality Provisions and "On Duty" Restrictions Unlawful: NLRB General Counsel's Office ( www.practicallaw.com/7-582-7105) (Issued: September 19, 2014)
Union Poster Campaign Suggesting Franchisee Sells Contaminated Food was Lawful: Supervisors' Endorsement of Facebook Harassment was Not: NLRB ( www.practicallaw.com/4-579-1966) (MikLin Enterprises, Inc., d/b/a Jimmy John's, August 21, 2014)
"Liking" a Comment on Facebook Can Be NLRA-protected Concerted Activity: NLRB ( www.practicallaw.com/3-579-1165) (Three D, LLC d/b/a Triple Play Sports Bar and Grille, August 22, 2014; updated October 21, 2015)
Discharge, Overbroad Social Networking and Off-duty Access Policies Compel New Union Election: NLRB ( www.practicallaw.com/5-566-2619) (Durham School Services, L.P., April 25, 2014)
Employer's Suggestion it Knew About Employee's Facebook Posts Does Not Permit Inferences of Protected Activity or Unlawful Retaliation: NLRB ( www.practicallaw.com/5-557-8885) (World Color (USA) Corp., February 12, 2014)
Union Need Not Disavow Non-agent's Threats on Union's Facebook Page: NLRB ( www.practicallaw.com/3-557-7245) (Amalgamated Transit Union, February 12, 2014)
Social Media Policy's Ban on Postings with Staff Photos, Confidential Information and the Company's Name or Logo Is Unlawful: NLRB General Counsels Office ( www.practicallaw.com/6-540-0486) (Issued: August 29, 2013)
Employee's E-mail and Facebook Post Criticizing Working Conditions and Publicizing Past Union Experience Were Protected Union Activity: NLRB ( www.practicallaw.com/7-527-6085) (New York Party Shuttle, LLC, May 2, 2013)
Facebook Complaints about Supervisor Were Concerted and Protected; Employer Cannot Claim Entrapment: NLRB ( www.practicallaw.com/6-526-4865) (Design Technology Group LLC dba Bettie Page Clothing, April 19, 2013)
Unpopular Employee's Facebook Post Unprotected by NLRA; Some Employer Policies Implicating Employees Use of Social Media Unlawful: NLRB General Counsel's Office ( www.practicallaw.com/2-524-3101) (Issued: February 7, 2013)
Employees' Facebook Posts about Coworkers Job Performance Criticisms was Protected Concerted Activity: Facebook Firings Unlawful: NLRB ( www.practicallaw.com/7-523-3289) (Hispanics United of Buffalo, Inc., December 14, 2012)
Facebook Firing Lawful; Employer's "Courtesy" Rule Prohibiting Disrespectful Speech Was a ULP: NLRB ( www.practicallaw.com/8-521-6425) (Karl Knauz Motors, Inc., September 28, 2012)
NLRB Invalidates Electronic Posting Rule in First Published Opinion Concerning Employers Limiting How Employees Use Social Media ( www.practicallaw.com/7-521-3272) (Costco Wholesale Corp., September 7, 2012
NLRA Does Not Protect All Employee Comments in Social Media: NLRB General Counsel's Office ( www.practicallaw.com/1-507-1553) (Issued: July 7, 2011 and July 19, 2011)