Recently, the National Labor Relations Board (NLRB) has renewed its scrutiny of retaliatory activity by employers based upon employees’ usage of social media. On January 24, 2012, the Associate General Counsel of the NLRB issued a second report on social media cases, which discusses common features of companies’ social media policies that, in the NLRB’s view, are overbroad under the National Labor Relations Act (NLRA). According to the NLRB, improper social media policies include, among others, prohibitions on employees making “disparaging comments about the company” using social media or otherwise casting an employer or fellow employees in a “defamatory” light, prohibiting “inappropriate conversation” by employees on social media, and requiring that employees first bring any “work-related concerns” to their employer before raising those concerns in a social media platform.
Employers should review the NLRB’s report in detail and would be well-served to re-examine their social media policies to confirm that they are NLRA-compliant. Importantly, companies that employ non-union workers should not assume they are off the hook, as the NLRB also recently has announced expanded efforts to counsel non-union employees about their rights to engage in protected concerted activity under the NLRA (we previously published an update about this development in the April 2, 2012 issue of Foley’s Legal News: Employment Law Update).