In August 2011, the National Labor Relations Board’s Acting General Counsel had issued a report on employee use of social media and online communications, and under what circumstances such behavior can be protected concerted activity under the NLRA. That report also set forth the NLRB’s position on permissive and over-reaching language in employer social media policies. That report was based on an analysis of the cases that had been decided by the NLRB regarding employee discipline for social media venting in the union and non-union context.
On January 24, 2012, the NLRB’s Acting General Counsel issued an updated report on unfair labor practices involving employee use of social media and the propriety of social media policies, based on the next set of cases decided by the NLRB on the subject. The overall message remains that employees who use social media to engage in protected concerted complaints about their employment are protected by the NLRA, as opposed to those employees who merely are discussing individual gripes. The key point on an employee’s social media activity falling within the protection of the NLRA is whether the posting activity relates to a prior discussion about terms and conditions of employment with co-workers, and whether other co-workers are engaging in on-line support or dialogue with the social media user. If yes, the internet based discussion will often be protected, even if laced with expletives or otherwise unsavory remarks. The report is available online.