A Survey of Social Media Issues Before the NLRB

By:

Michael J. Eastman
Executive Director, Labor Law Policy
U.S. Chamber of Commerce

Executive Summary

The intersection of traditional labor law and social media has presented many new issues, and some old issues with new twists, for the National Labor Relations Board (NLRB), employers, and other stakeholders.

A survey of publicly available materials indicates that 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 ten 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.

With respect to employer policies restricting employee use of social media, our 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 revealed in our survey 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 that a significant percentage of cases in our survey involved non-union employers with no union activity.

The Board has only just begun to address these many important issues, and it is, of course, hard to speculate as to how the Board will rule as these cases develop and whether those decisions will withstand judicial scrutiny. It is hoped that this survey can assist employers and counsel identify issues with which they should be aware as they grapple with the application of labor law to employee use of social media.