Legal Alert

NLRB Weighs In On Social Media — Again
by Joseph "Trey" L. Wood, III
February 6, 2012

As reported in previous posts, the National Labor Relations Board (NLRB) has taken employers to task for terminating employees for engaging in “protected activity” on various social media outlets.  Recently, the NLRB’s Acting General Counsel released a second report describing social media cases reviewed by his office. 

The Operations Management Memo covered 14 cases.  Several of the cases reviewed involved issues surrounding the validity of an employer’s social media policy and the remaining cases involved the termination of employees following comments that they posted on Facebook.

The two main points to take away from the report are the following:

  1. Social networking policies that prohibit employees from “making disparaging comments about the employer” are, in the eyes of the NLRB, overly broad because they could interfere with the employees’ rights to discuss terms and conditions of employment.  Specifically, the NLRB feels that the use of the word “disparaging” is too broad because it could “chill” employees from engaging in protected activity such as making comments that the employer is “not treating employees fairly or paying them sufficiently.”
  2. An employee’s comments on social networking sites are not generally protected if they are “mere gripes not made in relation to group activity among employees.”  Accordingly, if an employee makes comments about its employer on Facebook and other employees who are “friends” of the employee do not comment on the post, the employee’s posts are often not protected.

What You Should Do
It would be prudent to review your social media policy and if it prohibits employees from making “disparaging comments” about the company, it should be revised to exclude the use of terms that could be viewed as overly broad.  For example, one policy that the NLRB found to be permissible prohibited “the use of social media to post or display comments about co-workers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”  Another policy that withstood scrutiny provided that the employer could request employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws.  It also prohibits employees from using or disclosing confidential and/or proprietary information.  In the end, making your social media policy as specific as possible will help ensure its enforceability.

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