Will the Decision Invalidating the NLRB Recess Appointments Change the NLRB’s View Towards Employee Use of Social Media

As was widely reported, on January 25, 2013, the Court of Appeals for the D.C. Circuit struck down President Obama’s recess appointments to the National Labor Relations Board (NLRB).  The members who were found to have been appointed under an unconstitutional exercise of executive power were Sharon Block, Terence F. Flynn and Richard E. Griffin.  One of the questions raised by this decision is whether the NLRB’s policy towards employee use of social media will change.  In the last couple of years, the NLRB has issued numerous rulings, primarily by its administrative law judges, as well as issuing three widely-read reports from it General Counsel’s office addressing social media policies and the application of those policies.  These rulings and reports have almost universally taken the position that any employment policy that can be construed to limit communications between co-workers discussing the terms and conditions of employment is unlawful.  For example, the NLRB Board this past September struck down a rule prohibiting employees from electronically posting statements that damage the Company or damage any persons reputation because, read broadly, the policy prohibited negative statements about how the company treated its employees.

Even if the Board cannot continue under its current composition, it is unlikely that there will be any changes to the NLRB’s view regarding social media.  The General Counsel’s office has made plain its position that the internet should be viewed a place for employees to communicate about the workplace, including making complaints about their employer.  Additionally, if President Obama is compelled to appoint new members to the NLRB Board, any new appointees will almost certainly contain similar views about the workplace and employment rules.  In short, it is difficult to believe that the NLRB will have a change of position in its view of employee use of social media and employers should continue to bear this in mind in both policy and practice.