NLRB Continues Its Focus On Social Media

January 27, 2014

In a Jan. 2014 interview with Law360, National Labor Relations Board (NLRB) Chairman Mark G. Pearce and Board Member Philip A. Miscimarra confirmed that the Board will continue its emphasis on social media cases. Chairman Pearce favorably noted the widespread publicity the Board received from its social media decisions and also hinted that the Board could announce entirely new social media standards in the future, which should give employers little comfort.

Although Chairman Pearce stated that that the Board has applied and will continue to apply its “established standards” to social media cases, Mr. Miscimarra acknowledged widespread confusion among employers in this context. The NLRB General Counsel memoranda issued on Aug. 18, 2011, Jan. 24, 2012, and May 30, 2012 continue to provide the best guidance to employers on the Board’s current standard. In particular, the May 30, 2012 memorandum attached a Wal-Mart policy that the General Counsel found to be in compliance.

Based on those memoranda and decided cases to date, several general rules of thumb exist.

  • For example, employer policies that generally prohibit the use of social media to compromise the privacy or confidentiality of others, or that prohibit posting anything that employees would “not want their manager to see” or that might “put their job in jeopardy,” will not pass scrutiny because such limitations could reasonably be construed to prohibit communications about wages or conditions of employment.
  • On the other hand, the Board will approve social media policies that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that the policy limitations could not reasonably be construed to prohibit activity protected by Section 7 of the National Labor Relations Act (NLRA).
  • The Board also distinguishes between concerted, protected activity via social media and personal gripes unrelated to group activity among employees. For example, an employer cannot terminate employees who post messages on Facebook, criticizing a manager for not being responsive to safety concerns. However, when for example an employee posted profanity-laced comments about her employer and her supervisor in a private group message on Facebook, taunting the employer to “FIRE ME. . .Make my day,” the employer’s termination was not considered unlawful because the postings were unprotected “boasting and griping.”

Chairman Pearce’s comments about potential new social media standards should be concerning to employers. The Board has several social media cases currently pending, and the Chairman stated that the Board would be issuing a large number of decisions involving social media during 2014. Thus, employers should pay close attention to the Board’s forthcoming social media decisions for additional guidance as to what the NLRB deems to be acceptable with respect to social media policies and other matters, such as an employee’s right to use his or her employer’s e-mail system.

For assistance in updating your company’s social media policy or with the application of NLRB social media decisions in your workplace, please reach out to your McGuireWoods contact or a member of the firm’s traditional labor group.