Hunton Employment & Labor Perspectives

The National Labor Relations Board (“NLRB”) regional offices addressing complaints involving employers’ social media policies must seek advice from the NLRB’s Division of Advice before taking any action. The memorandum, issued by the NLRB’s Office of the General Counsel on April 12th, added social media disputes to the list of matters that must be submitted to the Division of Advice.  The Division of Advice is responsible for issuing opinions on difficult or novel labor issues. 

Citing lack of governing precedent and the important policy issues involved, the NLRB’s Acting General Counsel Lafe E. Solomon instructed regional offices to submit for review “cases involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter.”

On a related note, earlier this month, the NLRB's Manhattan Regional Director informed Thomson-Reuters that the NLRB planned to file a complaint against the company for allegedly reprimanding an employee who had criticized company management on Twitter.  A complaint is not yet publically available. 

This is not the first time a regional NLRB office challenged an employee’s social media policy.  In October 2010, the NLRB’s Connecticut Regional Office issued a complaint against the American Medical Response of Connecticut over an employee’s termination for posting unflattering statements about her supervisor on Facebook. The NLRB settled this complaint in February 2011.  The settlement required the company to revise its policy to "ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work.”  The employer also agreed that it “would not discipline or discharge employees for engaging in such discussions.”

While the NLRB has not yet issued a ruling in any case that would provide precedential guidance on social media issues as noted in the General Counsel memorandum, the NLRB Division of Advice has considered an employer’s social media policy and refused to issue a complaint.  In 2009, a union asked an NLRB regional office to issue a complaint against Sears Holdings Corporation for maintaining a social media policy that prohibited, among other things, “disparagement of company's or competitor's products, services, executive leadership, employees, strategy, and business prospects” on the grounds that the policy restricts the employees’ right to “engage in concerted activities” under Section 8 of the National Labor Relations Act (“NLRA”).  The Division of Advice found that the disparagement provision, read in concert with a list of proscribed activities including “abusive and profane language” and “verbal, mental, and physical abuse” did not violate the NLRA.  Noting that the employer’s policy explicitly stated its intent not to restrict the flow of useful and appropriate information, the Division of Advice concluded that a complaint was not warranted because the policy as a whole did not reasonably tend to limit or chill protected activities.

While the NLRB’s position on social networking policies remains unclear and somewhat inconsistent, the recent General Counsel memorandum underscores the NLRB’s growing alertness to the topic of social media and its role in the workplace.