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Acting General Counsel of NLRB Provides Guidance on When Employers May Discipline Employees for Social Media Activities

Recently, the Acting General Counsel of the National Labor Relations Board (“Board”), Lafe E. Solomon (“Solomon”), provided guidance on an emerging issue in labor and privacy law: when an employer may discipline an employee for the employee’s social media activities, such as Facebook comments, Twitter posts, or comments on Internet message boards.

Solomon issued this guidance in the form of a memorandum that examined several recent cases where the Board addressed whether certain employment actions and policies relating to social media violated federal labor law. Employers should pay close attention to this memorandum because, although it is not binding law, it provides valuable guidance on the position of the Acting General Counsel’s office on these issues. The memorandum helps illustrate when the Acting General Counsel may issue complaints against employers who discipline union and non-union employees for these types of online activities, or maintain policies restricting employees’ social media use.

Solomon first addressed the Board’s current position on when an employee’s social media activities will be protected under federal labor law. An employee’s social media activities will be protected only where the employee is engaging in “protected concerted activity,” i.e., group action with or on the behalf of other employees, to improve working conditions. Protected concerted activity includes situations where an employee seeks to initiate group action regarding working conditions or bring group complaints about working conditions to management’s attention. For example, where a car salesman complained on Facebook about the refreshments his employer served at a sales event, a Board administrative law judge held that the employee’s comments were protected, because he was publicizing his coworkers’ complaints about the sales they lost due to the poor refreshments. Conversely, the Acting General Counsel referenced a case where a different employer did not violate federal labor law by discharging an employee who complained on Facebook about the employer’s tipping policy, because the employee complained only to his relative, and did not discuss the complaint with coworkers.

The Acting General Counsel also addressed the Board’s current view on when social media activities will be so unacceptable as to lose legal protection. An employee will not necessarily lose legal protection simply by making comments that could be considered offensive or insulting. The memorandum noted that whether an employee has exceeded his or her legal rights will depend on several factors, including whether the employee: (i) interrupted work; (ii) made verbal or physical threats; or (iii) acted in response to an employer’s unfair labor practice. For example, an employer likely may discipline an employee for an outburst against a supervisor during working hours that disrupts production. The Acting General Counsel also noted that an employee will not be protected if he or she makes false statements about an employer’s products or management in a manner that is sufficiently disloyal, reckless, or malicious.

Finally, the memorandum addressed when employment policies that restrict social media activities will violate federal labor law. Federal labor law prohibits employment policies that tend to “chill” employees from exercising protected labor rights, such as the right to engage in protected concerted activity. Accordingly, the Board generally will find a social media policy unlawful where it proscribes a broad range of conduct that arguably could include protected conduct, but does not clarify that protected conduct is not prohibited. Applying this rule, the Acting General Counsel referenced a case where an employer violated federal labor law by maintaining a policy that prohibited employees from using social media in a manner that could damage the employer’s reputation. The policy was unlawful because it did not sufficiently clarify that it did not bar protected activities, such as group complaints about working conditions.

This guidance underscores the difficulties that can arise when employers discipline employees for social media activities. In deciding whether to discipline an employee for Facebook comments, Twitter posts, or similar online activities, you should ensure that the employee is not engaging in protected concerted activity, as defined above. Similarly, prior to implementing a social media policy, you should ensure that it sufficiently clarifies that it does not prohibit protected activities.

If you have any questions about the Acting General Counsel’s recent guidance, or when social media activities will be protected under federal labor law, please contact a member of Greenebaum’s Privacy and Security Team or Labor and Employment Practice Group

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    Phil is a partner and former co-chair of the Labor and Employment Department. He represents employers in defending against employment-related claims in both federal and state courts. He represents clients involving covenants not ...



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