On January 25th, National Labor Relations Board Acting General Counsel Lafe Solomon issued his second report summarizing cases that involve employee activity on social media outlets like Facebook or Twitter. General Counsel Memorandum OM 12-31 follows on the heels of the Acting General Counsel’s August 2011 report and generally summarizes 14 recent and “extremely fact-specific” social media cases reviewed by the Board’s Division of Advice, half of which involved questions about employer social media policies. The remaining cases involved employees who were discharged after they posted comments to Facebook. Unfortunately, the Memorandum does not include any identifying information about the cases, making it difficult to do more than take the summaries at face value. Although the cases reflect the current thinking of the Board’s national and regional level staff, employers should note that the Acting General Counsel selected these cases from the Board’s Division of Advice opinions on whether to issue a complaint, and not from formal Board decisions.
Already this year, in Triple Play Sports Bar, Case No. 34-CA- 12915 (January 3, 2012), a Board administrative law judge (ALJ) found that even using Facebook’s “Like” button might confer protection under the National Labor Relations Act. In Triple Play Sports Bar, the ALJ found that an employer had unlawfully terminated employees for participation in a Facebook conversation regarding their employer’s withholding of taxes. In an example of the ever-expanding category of actions that might merit protection under the Act, the ALJ found that one of the discharged employees had participated in a protected discussion by simply clicking the “Like” button on another employee’s Facebook wall post about the employer’s tax withholding error.
As we warned after the Acting General Counsel’s first report, the Board will not hesitate to extend employee rights to a broad range of social media activity. The new Memorandum and its accompanying press release also reemphasize that employers are not free to adopt blanket social media policies that could discourage or prohibit protected concerted activity. The Memorandum also reminds employees, however, that their individual gripes and complaints on social media outlets will not receive protection under the National Labor Relations Act.
Most troublingly for employers, the Board’s national and regional staff continue to find many facially neutral, but broadly worded, policies to be unlawful restraints of employees’ rights to engage in protected concerted activities under the Act. For example, the Board has found unlawful restraint in social media policies that:
specified that employees should generally avoid identifying themselves as their employer’s employees, unless they were discussing the terms and conditions of their employment in an appropriate manner;
prohibited “disrespectful conduct” and “inappropriate conversations” generally;
prohibited unprofessional communications that could negatively impact the employer’s reputation or interfere with its mission;
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