May 23, 2022

Volume XII, Number 143

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May 20, 2022

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NLRB Issues Approved Social Media Policy

The National Labor Relations Board (NLRB) is the agency charged with enforcing the National Labor Relations Act.  This statute is most known as the source of employees’ rights to collectively bargain with employers through unions.  However, the statute also protects employees’ rights to act together informally to address terms and conditions of their work, even in non-unionized workplaces.  This informal activity is called “concerted activity.”  The NLRB has been very active in defending employees’ rights to use social media in ways which might be considered “concerted activity.”  It has issued several publications this year illustrating ways in which social media can be legitimately used by employees as a means of concerted activity. 

The NLRB has filed unfair labor practice charges against employers who have disciplined employees for social media use that the NLRB felt could be seen as “concerted activity.”  In addition, the NLRB has filed unfair labor practice charges against employers who have social media policies that the NLRB felt might be construed as “chilling” employees’ rights to engage in concerted activity.  Company policies on social media are usually adopted in order to inform employees of the company’s position on use of the company name or logo in social media posts, to prohibit dissemination of confidential business information of the company, and to prohibit employees from presenting their personal views as those of the company.  While these are all legitimate concerns, and prohibiting this conduct does not violate the National Labor Relations Act, many employers have wrestled with stating these legitimate policies specifically enough that they could not be broadly construed as chilling employees’ rights to use social media to communicate with co-workers about workplace conditions.

On May 30, 2012, the Office of the General Counsel for the NLRB issued Memorandum OM 12-59, which  explains the NLRB’s position on social media policies.  Most significantly, this report includes a social media policy that NLRB has found does not violate the National Labor Relations Act.  Employers concerned about employee misuse of social media should review this policy with their counsel to see if all or part of it will fit their needs, since adoption of this policy will help avoid an unintentional violation of the National Labor Relations Act.

© 2022 Poyner Spruill LLP. All rights reserved.National Law Review, Volume II, Number 158
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About this Author

Susanna Knutson Gibbons, Poyner Spruill Law firm, Employment Compliance Attorney
Partner

Susie practices in the areas of employment compliance law, employment defense in litigation and administrative proceedings, and ERISA litigation. She regularly advises and defends clients in the full range of employment related issues, including discrimination, retaliation and harassment, wrongful discharge, Affirmative Action Plans, Fair Labor Standards Act , and Family Medical Leave Act. She also reviews and writes employment contracts, policies and handbooks. Susie is a regular speaker on employment matters. Susie is also both the Employment Law Practice Group Leader and a member of the...

919-783-2813
David L. Woodard, Employment Litigation Attorney, Poyner Spruill, Law firm
Partner

David practices in the area of employment litigation.  He regularly advises and defends clients in race, age, disability and sex discrimination and harassment cases; reviews handbooks and termination issues; and provides compliance advice on matters of employment law.

Representative Experience

McNeil v. Scotland County - Obtained summary judgment for employer where plaintiff alleged race discrimination and retaliation in violation of Title VII of the Civil Rights Act as well as violation of the Americans...

919-783-2854
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