March 16, 2018

Do Not Ignore the NLRB: Social Media

Non-union employers often assume the National Labor Relations Act (“NLRA”) does not apply to them. That is incorrect. The NLRA protects both union and non-union employees. During the past few years, the National Labor Relations Board (“NLRB”) has become more and more involved in the non-union sector.

The NLRA protects the rights of employees to organize or form a union and to “engage in other concerted activities for the purpose of mutual aid and protection.”  29 U.S.C. §§ 157-158. This may include an employee’s Facebook postings or Tweets.

For example, see this part of General Motor’s former handbook policy:

“Treat everyone with respect:  Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if unintentional.  We expect you to abide by the same standards of behavior both in the workplace and in your social media communications.”

The NLRB found this and other portions of the employer’s handbook to be unlawful because it infringed on an employee’s ability to engage in protected activity. Company policies should not be over broad and should include language that the policy is not meant to prohibit or restrict any lawfully protected activity.

The NLRB’s latest guidance on social media policies can be found at, Memo Number OM 12-59 NLRB Office of the General Counsel, Division of Operations and Management,  Report of the Acting General Counsel Concerning Social Media Cases (May 30, 2012).