Last August the National Labor Relations Board Acting General Counsel issued a report detailing the outcome of investigations into 14 cases involving employee use of social media and social media policies.
A second report issued January 24 on the same subject underscores that social media remains a top NLRB enforcement priority. In the preface of this most recent report, acting General Counsel Lafe Solomon writes that, “ these issues and their continued treatment by the NLRB continue to be a ‘hot topic’ among practitioners, human resource professionals, the media, and the public."
The case summaries contained in the report deal primarily with two subjects: 1) whether an employer’s social media policy is overly broad, in that it subjects employees to adverse action for activity that is protected by the NLRA; and 2) whether a particular termination of an employee because of social media postings violates an employee’s right to engage in protected and concerted activity. I won’t go into detail here, but can only echo Jon Hyman when he describes the NLRB’s latest foray into social media as "a mess".
Although it has been stated many times, it bears repeating because it is often forgotten: all employers, not just those with a unionized work force, are subject to the jurisdiction of the NLRB. An employee’s involvement in social media adds one more area of inquiry before discipline or discharge of an employee. Even though there are no lawsuits in court or jury trials for NLRA violations, being subject to a NLRB investigation is no picnic. It takes time, energy, and money to respond to these investigations. If your case goes to a hearing, potential remedies include reinstatement of the terminated employee, with back pay, and continued NLRB involvement in policing your employment policies.
Unfortunately for employers, the social media enforcement is one of the ways the NLRB is trying to remain relevant in the face of long standing and continued declines in private sector union activity.