As the popularity of social media sites such as Facebook and Twitter continues to grow, so, too, do employers continue to struggle with addressing social media issues in an effective, yet legal, way. A byproduct of this struggle is a social media report released by the National Labor Relations Board's Acting General Counsel in late January. It provides a summary of all social media cases reviewed by the NLRB within the last year.
The NLRB considered fourteen cases in 2011, with those cases involving two primary categories. One category of cases involved whether the written policy of an employer was facially legal; the second involved whether an employer had acted unlawfully by punishing an employee for specific conduct by the employee on a social media site.
With respect to the written-policy cases, five policies were found to be unlawfully broad, one was found to be lawful, and one was found to be lawful after it was revised. With respect to the employee-discipline cases, several discharges were found to be unlawful while one was found to lawful because an employee's Facebook posting was deemed not work related.
In his report, the General Counsel noted that the 2011 cases underscore two important themes. First, an employer's social media policy should not be so sweeping that it prohibits the kind of activity protected by federal-labor law, such as the discussion of wages or working conditions among employees. Second, an employee's social media comments are generally not protected if they are mere "gripes" unrelated to group activity among employees.
Because use of social media is growing and evolving, and because the Board (and courts) are only beginning to issue decisions regarding what policies pass muster and what specific behaviors employers can prohibit or punish, there is still a significant gray area. Employers drafting policies should tread carefully in drafting policies, and in implementing disciplinary actions when employees violate such policies or other conduct policies when using social media, and should stay tuned as the decisional authority continues to develop in this area.