NLRB Continues To Focus on Social Media Policies

By Cameron G. Shilling (originally published 5/19/2011)

In late 2010, the National Labor Relations Board (NLRB) challenged a company’s social media policy, charging that the company acted unlawfully by terminating an employee for engaging in alleged concerted activity on Facebook.  The case settled in February 2011.

The settlement required the company to revise its policies to “ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work.”  The company also agreed that it “would not discipline or discharge employees for engaging in such discussions.”

In early 2011, the NLRB targeted another type of social media – Twitter. According to the New York Times, the NLRB informed Reuters that it would file a complaint alleging that Reuters unlawfully reprimanding a reporter for criticizing management in a Twitter post.  The NLRB asserted that the company violated the reporter’s right to discuss working conditions with other employees.  Reuters agreed to negotiate a new social media policy that includes language protecting employees’ right to engage in concerted activity.

On April 12, 2011, the General Counsel of the NLRB issued a memorandum to Regional Directors updating the list of matters that must be submitted for advice about how to proceed.  Included on the updated list are cases involving “employer rules prohibiting or disciplining employees for engaging in protected concerted activity using social media, such as Facebook or Twitter.”

While the NLRB’s ultimate position on social media policies remains uncertain, the General Counsel memorandum underscores the NLRB’s growing interest in social media policies.  Companies therefore should exercise care in how they handle social media issues from a labor relations perspective, and take this as an opportunity revisit and revise their social media policies.

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