Social Media Double Take: NLRB Memo is Cause for Policy Review
Written By: Charles L. Appleby, IV, Esq.
Collins & Lacy, P.C.
Columbia, South Carolina
If your clients or company have a social media policy, it’s time to take a second look – especially after the National Labor Relations Board (NLRB) released a report about employee use of social media and employers’ social media policies. MemorandumOM11-74, Nat’l Labor Relations Bd., Office of the Gen. Counsel (Aug. 19, 2011) (on file with author).
On August 18, 2011, the Office of the General Counsel of the National Labor Relations Board (NLRB) issued OM11-74, a memorandum summarizing the unfair labor practice cases involving social media that were considered in the last year by the NLRB’s Division of Advice. The memorandum defines social media as including “various online technology tools that enable people to communicate easily via the internet to share information and resources.” Id. at 2.
The NLRB report details the outcome of its investigations into 14 cases involving employee use of social media and employers’ social media policies. In four cases involving employees’ use of Facebook, the NLRB’s Division of Advice found the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the NLRB found the activity was not protected.
As the NLRB continues its effort to define the regulation of social networking, it is striving to make decisions by local NLRB chapters congruent on a national level.
The NLRB is requiring all regional directors to submit complaints related to social networking issues to the Division of Advice for clarification and direction prior to hearing the complaint. While the NLRB is attempting to harmonize the decisions of its local chapters, due to the new composition of the NLRB, which changed under the President Barack Obama administration, the tune it sings will most likely sound sweeter to employees.
The bottom line is that employers need to start carefully reviewing their policies and actions in regard to social media. Remember that National Labor Relations Act Section 7 protects employees’ ability to work together to make changes in the workplace, even if they are not members of a union or engaged in a formal union-organizing campaign, so companies should avoid including overbroad rules in employment policies. 29 U.S.C. §§ 151-169 (1996).
From a best practices standpoint, based on how the NLRB is currently analyzing cases, it is worth including language in your social media policy, or advising clients to include language in their policies, such as (1) nothing in this policy is intended to chill or limit employee rights protected under the National Labor Relations Act, or any other applicable state or federal law; and (2) any conflict between the language in this policy and the current state of the law regarding employee rights, will be decided in favor of the law.
Finally, employers should avoid disciplining an employee for (1) social media content relating to the terms and conditions of employment or (2) an employee’s attempt to involve other employees in issues related to employment.
* Charles is an associate with Collins & Lacy in Columbia, South Caroline, where he practices in the areas of employment law, complex defense litigation, and construction defect litigation. You may reach Charles at firstname.lastname@example.org or 803-256-0409.