To help provide further guidance to practitioners and human resource professionals, NLRB Acting General Counsel Lafe Solomon has released a second report describing social media cases reviewed by his office.
The Operations Management Memo covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.
The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.
The report underscores two main points made in an earlier compilation of cases:
Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.
Given the new and evolving nature of social media cases, the Acting General Counsel has asked all regional offices to send cases which the Regions believe to be meritorious to the agency’s Division of Advice in Washington D.C., in the interest of tracking them and devising a consistent approach. About 75 cases have been forwarded to the office to date. The report, which does not name the parties to the cases or their locations, illustrates that these cases are extremely fact-specific.
The report represents the Acting General Counsel’s interpretation of the National Labor Relations Act as it applies to forms of communication that did not exist when the Act was written. Three cases involving social media questions are currently pending before the Board and those decisions will give further guidance as the law around social media develops. Information on the three cases can be found on their Case Pages here, here, and here.