Acting NLRB GC Issues Updated Report Concerning Social Media Cases

Report analyzes seven employer social media policies under the National Labor Relations Act, and provides an example of a policy that is considered to be lawful.

On May 30, Lafe Solomon, Acting General Counsel (AGC) of the National Labor Relations Board (NLRB or the Board), issued the third in a series of reports on social media cases. The reports, issued on August 18, 2011, January 24, 2012, and May 30, 2012, respectively, present the AGC's views on whether unfair labor practice charges arising in the context of social media should be prosecuted. It is important to note that these reports do not constitute binding NLRB precedent. They only reflect the AGC's position for purposes of determining whether an unfair labor practice charge should be prosecuted.

The most recent report analyzes seven employer social media policies under the National Labor Relations Act (NLRA or Act) and is notable in three respects: (1) for the first time, it sets forth a sample social media policy that the AGC deems lawful under the Act; (2) it reflects that the AGC has reversed course and now believes that an employer may require employees to include a disclaimer that views expressed on social media are the employee's own and not those of the company; and (3) it finds a social media policy to be unlawful insofar as it encourages employees to utilize internal procedures to resolve concerns instead of social media or online forums.

Background

An employer's social media policy or rule may violate Section 8(a)(1) of the Act if it "would reasonably tend to chill employees in the exercise of their Section 7 rights." Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enf'd, 203 F. 3d 52 (D.C. Cir. 1999). The NLRB has found that a policy or rule is clearly unlawful if it explicitly restricts activity protected by Section 7 of the Act. If the policy or rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that (1) employees would reasonably construe the language to prohibit Section 7 activity, (2) the rule was promulgated in response to union activity, or (3) the rule has been applied to restrict the exercise of Section 7 rights.

Policies that are ambiguous as to their application to Section 7 activity may also be unlawful if they contain no limiting language or context that would demonstrate to employees, in a manner in which they can understand, that the policy does not restrict Section 7 rights. University Medical...