NLRB General Counsel Offers Guidance to Employers on Social Media Policies

August 19, 2011

Appearing before our members at a meeting this summer, acting NLRB General Counsel Lafe Solomon indicated that the agency has been swamped with cases involving social media policies since he issued a complaint in a highly publicized case last November.  Under the NLRB's byzantine processes, it often takes several years for the law to become settled – if ever – and many companies are currently trying to put social media policies in place, with labor relations having little or no bearing on those policies.  Yet, the law's protection of employees engaging in "concerted activity" must still be reckoned with.  In effect, until the Board and the courts provide a definitive ruling, the law will be whatever the General Counsel says it is for companies that wish to avoid litigation before the Board.  Recognizing the existing confusion, Solomon has issued a report describing several rulings he has made in this area, including:

  • An employee engaged in protected concerted activity when she communicated via Facebook with co-workers regarding her job performance prior to a meeting with her supervisor regarding concerns raised about her by another co-worker.

  • An employer's social media policy prohibiting, among other things, disparaging comments about the company and its employees, was overly broad because it could include protected communications.  Another employer's policy prohibiting "inappropriate" discussions about the company, management and coworkers was similarly found to be overly broad because it did not define "inappropriate." 

  • A sales employee was protected when he posted disparaging comments and pictures regarding a promotional event by his employer because it reflected the views of many of his co-employees that the event was poorly handled and harmed their ability to make sales.

  •  A newspaper reporter was not protected when he posted tweets that were critical of the paper because his concerns had nothing to do with his terms and conditions of employment. 

  • Several other instances are cited where the employees were not protected, even when their Facebook postings involved terms and conditions of employment, because they did not discuss those postings with their coworkers or receive responses from them sharing views about the complaint.  In one case, mere expressions of sympathy by co-workers (e.g., "hang in there") did not suffice to make the activity concerted.

  •  A union violated nonunion construction workers' rights by posting a video on YouTube of interrogations of them about their lawful status as immigrants.

  • Although other aspects of its policy were unlawful, a supermarket's ban on employees pressuring other employees to "friend" them on Facebook was not overly broad since they could otherwise contact them to engage in protected activity.

  • A company did not violate employees' rights by requiring that all official external communications by the company occur through the company's media office, because employees would not reasonably interpret this as restricting their ability to contact the media on their own behalf about their working conditions.

In several cases, the decision turned on the failure of the employer to provide more guidance as to what was meant by its restrictions, thus allowing the employees to "reasonably" interpret them as banning discussions of wages and other terms and conditions of employment.  Until clarity is provided by the Board and the courts, employers are best advised to ensure that their policies are written so that employees will not view them as imposing restrictions on their ability to form a union or otherwise engage in discussions aimed at improving their working conditions.