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 to 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 (NLRB), which enforces the National Labor Relations Act (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 (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 Am. Med. Response of Conn., Inc., N.L.R.B. Gen. Counsel Advice Mem., (Oct. 5, 2010)). The NLRB considered the posting protected concerted activity. The case ultimately settled, but the media attention spurred:

Subsequently, two US Courts of Appeals and the Supreme Court held that the Acting General Counsel served under an invalid appointment by President Obama from January 5, 2011 to November 4, 2013 (see Legal Update, NLRB Acting General Counsel Invalidly Served from January 5, 2011 to November 4, 2013: DC Circuit). However, the nonbinding guidance on social media cases from the General Counsel's Office remains in the NLRB's annals and influenced prosecutorial decisions in later binding ULP cases.

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 issues binding precedents that adopt or reject the NLRB General Counsel's ULP analysis and define the rights of:

Board jurisprudence also suffered from invalid presidential appointments. The Supreme Court held that:

However, the Board vacated and reissued many of its invalid 2012-2013 decisions relying on its earlier vacated analyses (for example, see Design Tech. Grp., LLC (Bettie Page Clothing), 361 N.L.R.B. 876 (2014), adopting rationale of 359 N.L.R.B. 777 (2013)).

In more recent years, the NLRB has evaluated facially neutral employer rules concerning electronic communications, including those on social media, by considering and balancing:

(Boeing Co., 365 N.L.R.B. No. 154, slip op. at 1, 3, and 7-14 (Dec. 14, 2017).)

This Toolkit provides resources to assist employers in: