The National Labor Relations Board is at it again.
In August 2011, its Acting General Counsel, Lafe E. Solomon, issued a report summarizing several of its then-pending enforcement actions dealing with social media. These are disputes in which an employee was disciplined or terminated for something he or she posted online. In many of these cases, the NLRB sided with the employee, bringing charges against the employers for infringing the employees’ federal right to engage in “concerted activity.”
Six months later, Solomon recognizes that “these issues and their treatment by the NLRB continue to be a ‘hot topic’ among practitioners, human resources professionals, the media, and the public.” Therefore, in an attempt to keep all of these audiences informed on what the Board is thinking and where its efforts are headed, Solomon released a followup report on January 24, 2012. This document summarizes “fourteen recent cases that present emerging issues in the context of social media [and employment law].”
One notable aspect of these cases is that the Board appears to be focusing even more of its attention on the employer’s social media policy, as opposed to just the facts of individual employees’ dismissal. In some cases, even when the Board agreed with a termination, it still punished the employer for language in social media policies that, if read literally, gave the employer too much discretion over employee behavior.
As I did last time, instead of analyzing each case at length, I’ll reprint the headlines from each section in the report. This will give you an idea of why the NLRB considers these 14 cases to be important representations of the “emerging issues” in this area of law:
- Discharge for Facebook Comments and for Violation of Non-Disparagement Rule Was Unlawful
- Discharge for Facebook Comments Was Lawful, But Social Media Policy and No-Solicitation Rule Were Overly Broad
- Employer’s Social Media Policy Was Overbroad, But Employee’s Facebook Posts Were Not Protected
- Portions of Employer’s Communications Systems Policy Were Overbroad
- Employer’s Initial Social Media Policy Was Overbroad, But Amended Version Was Lawful
- Provisions in Drugstore Operator’s Social Media Policy Withstand Scrutiny
- Employee Was Unlawfully Discharged for Her Facebook Complaint About Reprimand
- Employees’ Facebook Postings About Supervisor and Promotion Selection Were Protected Concerted Activity
- Employee’s Facebook Postings About Manager’s Attitude and Style Were Protected Concerted Activity
- Employee’s Critical Online Postings Were Protected Concerted Activity That Did Not Lose Act’s Protection
- Employee’s Facebook Postings About Irritating Coworker and Workplace Incident Were Not Protected
- Truck Driver Was Not Engaged in Concerted Activity and Was Not Constructively Discharged
- Employee’s Facebook Criticism of Supervisor Was Venting and Was Not Concerted
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