Regular readers of this blog are well-acquainted with the zeal with which the National Labor Relations Board has been addressing labor law issues arising out of employee use of social media. You may have read our many posts on this topic, listened to this podcast, or even read our contribution to the book “Think Before You Click: Strategies for Managing Social Media in the Workplace.”
The U.S Chamber of Commerce has also recently issued a valuable resource – “A Survey of Social Media Issues Before the NLRB.” The author of this report reviewed more than 129 NLRB cases which have involved social media in some way. Indeed, many of these cases involve social media tangentially, most are at the very earliest stage of investigation, and others may lack merit entirely. But we agree with the Chamber that enough cases have advanced sufficiently to allow employers the opportunity to review their policies and practices for compliance.
Among the astute observations in the Chamber’s study:
- The issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
- The issues raised with respect to employer discharge or discipline of employees based on their social media posts include the threshold matter of whether the subject of social media posts is protected by the Act, as well as whether the employer unlawfully threatened, interrogated, or surveilled employees.
- Additional issues revealed in our survey concern whether the employer bargained with an existing union over a social media policy and union communication using social media. It is, however, important to emphasize that a significant percentage of cases in our survey involved non-union employers with no union activity.
Employers would be wise to review their social media policies in light of the Board’s evolving approach and these principles. Read the study in its entirety, and consider checking out our book. I will also be participating in a webinar through West LegalEd Center on August 24, 2011, at 11:30 a.m. EST, along with Margaret DiBianca, Esq. You can register for "Social Media and the National Labor Relations Act in the Unionized and Non-Unionized Workplace" here.