The National Labor Relations Board (NLRB) is the agency charged with enforcing the National Labor Relations Act. This statute is most known as the source of employees’ rights to collectively bargain with employers through unions. However, the statute also protects employees’ rights to act together informally to address terms and conditions of their work, even in non-unionized workplaces. This informal activity is called “concerted activity.” The NLRB has been very active in defending employees’ rights to use social media in ways which might be considered “concerted activity.” It has issued several publications this year illustrating ways in which social media can be legitimately used by employees as a means of concerted activity.
The NLRB has filed unfair labor practice charges against employers who have disciplined employees for social media use that the NLRB felt could be seen as “concerted activity.” In addition, the NLRB has filed unfair labor practice charges against employers who have social media policies that the NLRB felt might be construed as “chilling” employees’ rights to engage in concerted activity. Company policies on social media are usually adopted in order to inform employees of the company’s position on use of the company name or logo in social media posts, to prohibit dissemination of confidential business information of the company, and to prohibit employees from presenting their personal views as those of the company. While these are all legitimate concerns, and prohibiting this conduct does not violate the National Labor Relations Act, many employers have wrestled with stating these legitimate policies specifically enough that they could not be broadly construed as chilling employees’ rights to use social media to communicate with co-workers about workplace conditions.
On May 30, 2012, the Office of the General Counsel for the NLRB issued Memorandum OM 12-59, which explains the NLRB’s position on social media policies. Most significantly, this report includes a social media policy that NLRB has found does not violate the National Labor Relations Act. Employers concerned about employee misuse of social media should review this policy with their counsel to see if all or part of it will fit their needs, since adoption of this policy will help avoid an unintentional violation of the National Labor Relations Act.