NLRB Acting General Counsel Identifies Social Media Cases as Major New Area of Litigation

Posted by Arnold Perl and Michael Tauer on October 28th, 2011

Social media activities are exploding, as is litigation involving employee conduct on these social media sites. 

The National Labor Relations Board’s (“NLRB”) Acting General Counsel, Lafe Solomon, announced on October 20, 2011 that a major new area of litigation at the Board involves cases where employees contend they were unlawfully treated by their employer for their activity on social networks. 

The NLRB is the Federal Agency created to administer the National Labor Relations Act (“NLRA”), passed in 1935, which guarantees the rights of workers to join unions.  Yet, as the social media cases highlight, the NLRA also protects the rights of employees, with or without a union, to engage in protected concerted activities. 

The Board’s test for “concerted activity” is whether activity is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”  Concerted activity also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring “truly group complaints” to management’s attention. 

The Acting General Counsel’s October 20 announcement follows his earlier report on August 18 and the release on August 5, 2011 by the U.S. Chamber of Commerce that the NLRB has reviewed more than 129 cases involving social media in some way.  The survey conducted by the Chamber reported that the two most commonly raised issues in the cases brought before the Board allege that an employer maintains overbroad policies restricting employee use of social media and/or the employer improperly discharged or disciplined one or more employees for allegedly inappropriate conduct.

With regard to an Employer’s Social Media Policies, the Board has developed a two-step inquiry for determining the lawfulness of such policy: 

1.      The rule will be deemed unlawful if it explicitly restricts Section 7 Protected Activities.  Section 7 of the NLRA provides in relevant part that: “Employees 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 (emphasis supplied)…”

2.      If the rule does not explicitly restrict protected activities, it only will be deemed unlawful upon a showing that:

(a)     Employees would reasonably construe the language to prohibit Section 7 activity;

(b)     The rule was promulgated in response to union activity; or

(c)     The rule has been applied to restrict the exercise of Section 7 rights.

Given that Social Media cases have become a major new area of litigation before the NLRB, and given further that employees increasingly are using social media sites to disparage their employers and/or individual managers, employers are advised to have their policies and practices reviewed by legal counsel.  Protecting the Company’s “brand” is essential, but doing so without running afoul of the NLRA and Social Media traps is the bottom line.  Consulting with your attorney in a timely fashion can enable you to get ahead of the curve.

Topics: social media, labor, employment, NLRB, litigation, union, labor relations, Facebook, Twitter

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