Last Friday, the National Labor Relations Board (“NLRB”) ruled that two employees of a sports bar and restaurant were unlawfully discharged for their participation in a Facebook discussion criticizing their employer.  In the Facebook discussion that prompted the firings, a former employee complained in a status update that she owed more taxes than expected because of withholding mistakes by the employer.  The employee commented on the status, “I owe too.  Such an asshole,” and was discharged.  A second employee, who “liked” the former employee’s status, was discharged as well.

Section 7 of the National Labor Relations Act provides, in relevant part, “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 or protection . . . .”  At issue in this case was not whether the employees’ Facebook activity was “concerted” or whether the employees had a statutorily protected right to engage in a Facebook discussion about the employer’s tax-withholding practices.  Rather, the case centered on whether, as a result of their actions on Facebook, the two employees adopted the allegedly defamatory and disparaging statements contained in the former employee’s Facebook status and therefore lost the protection of the Act.
Continue Reading NLRB Finds Employee’s Facebook “Like” and Comment Protected By Labor Law

Many employers have been surprised by recent rulings that two common employment policies run afoul of the National Labor Relations Act (“NLRA”) even if their employees are not union members.  Based on a legitimate interest in preserving confidentiality and privacy, many employers have adopted social media policies limiting what employees may post on Facebook or Twitter about their employer or co-workers.  Based on similar privacy considerations, employer procedures for investigating sexual harassment and other complaints often place restrictions on what employees may reveal to their co-workers or others about the allegations.  According to recent decisions, however, both policies may violate Section 7 of the NLRA, which permits employees to engage in “concerted activity” for “mutual aid and protection.”

Section 7.  It is well established under the NLRA that employees may confer with one another about their wages and other terms of employment and may take  “concerted” action in an effort to improve their working conditions.  Employees (but not managers) are protected by Section 7 of the NLRA, whether or not they are members of a union. But employers rarely face Section 7 issues since claims under Section 7 must be asserted in charges filed with the National Labor Relations Board (“NLRB”), and few employees do so.   

Confidentiality of Complaint Investigations.  Enforcement Guidance issued by the EEOC directs employers conducting investigations of workplace harassment to assure complainants that they “will protect the confidentiality of harassment complaints to the extent possible.”  Employers routinely adopt policies asking employees who are part of workplace investigations, either as complainant or witness, to keep such investigations confidential.  Such policies help ensure the integrity of investigations, prevent workplace retaliation for participation in investigations, protect the privacy of complainants, and foster an environment where employees will readily report harassment concerns.


Continue Reading The NLRB Strikes Down Employer Policies on Social Media and the Confidentiality of Complaint Investigations

The National Labor Relations Board (NLRB) continues to be active in considering whether companies’ social media policies run afoul of U.S. labor laws.  In the latest decision implementing the approach reflected in a series of NLRB reports analyzing employer social media policies under the National Labor Relations Act (NLRA), an administrative law judge found that it is impermissible

A three-member panel of the National Labor Relations Board (NLRB) found that it is impermissible for Costco’s social media policy to ban employees from making electronic postings that damage the reputation of the company or anyone else.  The NLRB held that policy was not permissible because Costco employees could reasonably assume that it prohibited communications protected by the National Labor Relations Act (NLRA), such as communications critical of the company’s treatment of its employees.


Continue Reading NLRB Finds Costco Social Media Policy Unlawful

By Brian Ryoo

On May 30, National Labor Relations Board (“NLRB”) Acting General Counsel Lafe E. Solomon issued his third report on employer social media issues, focusing on “overbroad” employer social media policies.  The report expresses concern about “ambiguous [policies] that contain no limiting language or context” and give employees insufficient notice of their protected rights under the National Labor Relations Act (“NLRA”).  The report describes several recent cases in which the agency found employer social media policies to be unlawful, and it appends an example of a social media policy that is lawful from the NLRB perspective. 

Section 7 of the NLRA protects certain employee rights, such as the right to self-organization, to form, join, or assist labor organizations, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.  This protection applies to employees at almost all private employers, whether they have wage or non-supervisory, salaried employees.  NLRB case law interprets the Act to prohibit any work rule that “would reasonably tend to chill employees in the exercise of their Section 7 rights”― a prohibition that it has found implicated by overbroad employer social media policies.

Solomon’s report indicates that NLRB enforcement activity has focused on circumstances in which employers had issued a blanket ban on a broad spectrum of social media activities without including limiting language or clarifying that the rules do not restrict rights protected under Section 7.  Rules that the NLRB will consider lawful “clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity.”


Continue Reading NLRB Issues Updated Report on “Overbroad” Social Media Policies