Hunton Employment & Labor Perspectives

Last week, the NLRB’s Acting General Counsel, Lafe Solomon, released a second report containing guidance relating to employees’ use of social media.  This report comes less than six months after the release of the NLRB’s first report on the subject in August 2011.  Like the August report, the new release summarizes a number of recent cases decided by the NLRB in which an employee was terminated, at least in part, because of his or her comments on social media websites.

In his preamble to the report, Solomon notes that employers’ social media policies and employees’ online postings, as well as the NLRB’s approach to these emerging issues, are a “hot topic” not just in legal and human resources circles, but also in the media and among the general public.  Thus, according to Solomon, the purpose of the latest report is to “provide guidance as this area of the law develops.”

A few key themes emerge from the cases presented in the report:

• Seven of the fourteen cases summarized in the report deal with whether the employers’ social media policies were so “overbroad” that they interfered with employees’ Section 7 right to engage in protected concerted activity.
• In scrutinizing whether a social media policy was overbroad, the Board considered whether the policy could be reasonably construed by an employee to limit activities protected under Section 7, such as discussions about wages and other terms and conditions of employment.  As a result, the Board struck down policies that used terms such as “appropriate” or “professional” to describe what kind of social media posts the employer allowed without doing more to define those terms or to clarify that concerted activity protected under Section 7 was not restricted.
• The Board also considered whether the employers’ social media policies contained “limiting language excluding Section 7 activity from its” restrictions and whether the examples of prohibited conduct used in those policies could be “reasonably read” to include protected conduct.
• The Board also looked at industry and employer-specific context in evaluating social media policies.  For example, a drugstore operator’s social media policy, which restricted employees from discussing matters related to the company on social media sites, was considered lawful by the Board.  According to the NLRB, when interpreted in context, the drugstore operator’s employees would understand the policy to only restrict those communications that might implicate SEC or FTC regulations and not those communications protected under Section 7.
• Terminations that occurred under social media policies the NLRB considers unlawfully overbroad are not unlawful by default.  For a termination to be unlawful, the comments made by the employee giving rise to his or her termination must qualify as protected concerted activity under Section 7.  Thus, an employer must carefully consider whether the employee’s posting is merely unprotected “venting” about a matter of individual concern or whether the comments were intended to (or actually did) initiate a collective discussion or group action.