NLRB releases second social media report

Report underscores two important elements about social media policies

The National Labor Relations Board (NLRB) issued a second social media report Jan. 25 that underscored some of the points made in the board’s first report, which it released in August 2011.

The Operations Management Memo looked at 14 cases—seven of which involved questions about employers’ social media policies. According to the release issued by the NLRB’s Acting General Counsel Lafe Solomon, five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.

“The remaining cases involved discharges of employees after they posted comments to Facebook,” the release said. “Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.”

The most recent report underscores two of the points made in the NLRB’s first report:

  • Companies’ social media policies should not be so sweeping that they infringe on employee rights protected under federal labor laws
  • Employees’ comments on social media sites generally are not protected if they are mere gripes not made in relation to group activity among employees 

The NLRB conducted a survey last year reviewing more than 120 cases on companies’ social media policies and determined that companies may need to take a closer look at whether they are breaking the law when they fire employees over social media usage. 

For a more detailed analysis of the NLRB’s recent report, read Little Mendelson Partner Philip Gordon’s column on the Association of Corporate Counsel’s website.



Cathleen Flahardy

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