The National Labor Relations Board (“NLRB”) recently issued its first two rulings on employer social media policies and its first ruling on an employee’s termination due to posts on Facebook. These rulings are significant for all employers – not just those with unionized workforces – because they provide guidance regarding what social media behaviors will be deemed protected activity under the National Labor Relations Act (“NLRA”) and, therefore, what employers can and cannot regulate in their policies and practices.
The NLRA protects employees’ rights to engage in “concerted activity” for the purpose of collective bargaining, or for other mutual aid or protection (Section 7) and prohibits employers from interfering with, restraining, or coercing employers who are exercising rights guaranteed under Section 7 (Section 8). The Acting General Counsel of the NLRB, the government agency that investigates and remedies unfair labor practices, has made litigation of NLRA claims involving social media a priority. Many employers assume – mistakenly – that the NLRA and NLRB are relevant only if their workforce is unionized. To the contrary, the NLRA covers all private employers that have an impact on interstate commerce (with certain exceptions, such as public employers and railways) – approximately six million private employers nationwide. The NLRA’s reach is expansive, and when the NLRB determines that an employer’s policy inhibits activity protected by the NLRA, all private employers would do well to pay attention.
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