Client Alert: NLRB Releases Report on Social Media Cases

On January 24, 2012, the National Labor Relations Board ("NLRB") Acting General Counsel released a report on social media cases heard by the NLRB in the last year. The report was a follow-up to a report dated August 18, 2011. The growing popularity of social networking sites, such as Facebook and Twitter, to share information prompted the NLRB to take a closer look at company social media policies, in particular how they limit employees' speech.

The report includes a summary of fourteen recent cases involving social media policies. Most of the cases evaluated policies under Section 7 of the National Labor Relations Act ("NLRA"), which states that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…." The NLRA further protects employees by prohibiting employers from interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7.

In the press release, the NLRB highlighted two main points that emerged from the cases:

• Employer policies should not be so broad that they prohibit activity protected by federal labor law, such as the discussion of wages or working conditions; and
• Comments made by employees in social media are generally not protected if they are not made in relation to protected concerted activity amongst employees.

The NLRB acknowledged that the cases were very fact-specific. Of the fourteen cases, one-half involved discharges of employees based on comments they posted on Facebook, and the others analyzed company social media policies. For the seven cases involving discharges, the NLRB deemed most of the discharges unlawful under the NLRA because the employers' social media polices violated employees' rights. The NLRB upheld one discharge even though the policy was unlawful because the employee's communication was not work-related and was therefore not held to be protected under Section 7.

With regard to the other seven cases analyzing social media policies, the NLRB deemed five of the seven social media policies reviewed unlawful, but upheld one policy after it was revised. The NLRB found the original policy overbroad because it prohibited defamatory postings that could be attributed to work-related issues, but determined that the revised version- which forbid "statements which are slanderous or detrimental to the company"- would not restrict Section 7 activity, as the context provides the key to reasonableness.

Although these are new and evolving interpretations of the NLRA, there are steps employers can take to protect themselves. An employer's policy should be adjusted depending on the size and nature of the company, but in general, employers can prohibit personal use of work resources that interfere with work performance, disclose confidential information, or drain employer resources.

Companies should ensure that their social media policies do not restrict employees' rights to discuss working conditions outside of work. In addition, if employees do use social media to express negative views about a company, the company should exercise caution in responding to ensure that it is not charged with retaliation. While some speech may not be protected, such as harassment or defamatory allegations, employers must exercise caution when addressing employee conduct.

For more information on social media or employment issues, please contact Sheila A. Millar (+1 202.434.4143, millar@khlaw.com); Manesh K. Rath
(+1 202.434.4182, rath@khlaw.com); or Tracy P. Marshall at
(+1 202.434.4234, marshall@khlaw.com).