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NLRB Issues Report on Social Media Cases

The General Counsel for the National Labor Relations Board (“Board”) has issued a report on social media cases addressed by the Board in the past year.

The introduction to the report noted that recent developments in the Office of the General Counsel have presented “emerging issues” concerning the protected and/or concerted nature of employees’ social media activities, the coercive impact of social media activities, and the lawfulness of employers’ rules and policies on social media.  In the report itself, the General Counsel discussed several different cases and scenarios where employees were disciplined for posting statements through social media outlets – which were usually on Facebook or Twitter.

In each of these cases, the Board focused on whether the activity in question was “protected and concerted.”  Protected activity includes discussions that relate to an employee’s terms and conditions of employment.  Concerted activity needs to involve more than just one employee.  Thus, in many of the cases discussed in the report, the Board did not find that a disciplinary action taken against an employee violated the National Labor Relations Act (“Act”), because the employee had not engaged in “concerted” activity.  More specifically, those employees made statements on Facebook or Twitter, but such actions did not involve discussions with other employees. Therefore, such statements did not constitute “protected and concerted” activities.  Rather, they were simply considered to be “individual gripes.”  In other cases, however, the Board found that the employer violated the Act when it disciplined employees for engaging in “protected and concerted” activities.

Another series of cases dealt with employers who had “overbroad” social media policies.  Such polices were deemed to be unlawful, because “employees could reasonably construe them to prohibit protected conduct.”  In those cases, the employers were required to amend their social media policies.  Additionally, any disciplinary actions implemented under such overbroad policies were invalidated.

You can read a full copy of the report here.