Social Media Use Creates New Issues for Employers

The purpose of the survey is to summarize the publicly available information obtained through the Chamber’s Freedom of Information Act request and other available sources regarding the National Labor Relations Board’s (NLRB’s) caseload related to social media in an effort to help reveal the many areas where social media and labor law intersect—areas that will confront the Board, employers, and other stakeholders in the coming months and years. The survey focused primarily on issues raised through use of Facebook, Twitter, and similar channels.  

According to the survey report, the NLRB has reviewed more than 129 cases involving social media in some way. While most of these cases are at the very initial stage, and may not be meritorious at all, some are more advanced. At least two Board decisions have social media components, as do another two decisions by administrative law judges.   

There are at least seven settlement agreements involving social media cases and the Board’s General Counsel has issued complaints in an additional four cases. The General Counsel has also issued 10 memoranda involving social media, eight of which are opinions from the Division of Advice.  

The issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts (see NLRB Steps In Again over Firing for Facebook Posts).  

With respect to employer policies restricting employee use of social media, the Chamber’s review of cases found many specific policies alleged to be overbroad, including those that restrict discussion of wages, corrective actions and discharge of co-workers, employment investigations, and disparagement of the company or its management. The context in which the policy was adopted and even the issue of whether a rule or policy has been actually adopted are also important in these cases.  

The issues raised with respect to employer discharge or discipline of employees based on their social media posts include the threshold matter of whether the subject of social media posts is protected by the Act, as well as whether the employer unlawfully threatened, interrogated, or surveilled employees. Additional issues concern whether the employer bargained with an existing union over a social media policy and union communication using social media. It is, however, important to emphasize a significant percentage of cases in the survey involved non-union employers with no union activity.