Social Media and the NLRB (Part 1): The NLRB Intervenes in Social Media

By Cameron G. Shilling (originally published 10/3/2011)

New and exciting developments are a hallmark of the social media revolution.  The least expected of these developments, however, is that social media would be regulated by the National Labor Relations Board (NLRB).  Over the past few years, the NLRB has reviewed more than 130 social media cases, filed numerous complaints against businesses, issued several decisions, and published a report summarizing its position.  Is the NLRB’s activity justified and helpful, or an unwarranted hindrance?  The courts have not resolved that issue yet.  Until then, businesses should beware not to unwittingly stumble into these legal problems.Businesses with non-unionized workforces often do not expect to be governed by the NLRB, and are understandably unfamiliar with the rules of the National Labor Relations Act (Act).  However, the NLRB’s reach into social media has not spared non-unionized businesses and, in fact, the NLRB has targeted these businesses in the majority of cases it has pursued.

While the Act primarily addresses union-related activities, one provision of it applies to all businesses, even those without unionized workforces.  It is referred to as the “concerted activity” provision, and states as follows:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection.

It is not surprising that the Act protects concerted activity designed to form a union, and perhaps not surprising that it protects non-union activities designed for the mutual aid and protection of a workforce.  What is surprising is the NLRB’s intense focus on social media, as if it were a super-special forum for concerted activity.  Also surprising is the sheer breadth of the NLRB’s application of the concerted activity provision to social media.

The NLRB’s intervention into social media impacts businesses in two ways.  First, the NLRB has targeted policies – both general policies and social media policies – that chill concerted activity, which is the topic of the next part of this blog post.   Second, the NLRB will protect an employee from discipline or discharge related to any social media conduct that qualifies as concerted activity, which will be addressed in the last part of this post.

As a result, businesses should review their policies to assess whether they may chill concerted activity, and adopt social media policies that comply with current NLRB requirements.  Also, businesses should beware when disciplining or discharging employees for any social media related conduct, to ensure that the conduct does not involve concerted activity.

This is Part 1 of a 3 part blog post concerning Social Media and the NLRB.  Please stay tuned for Part 2 and Part 3 coming shortly.

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