On August 18, 2011, the Acting General Counsel of the National Labor Relations Board, Lafe E. Solomon, issued a memorandum concerning unfair labor practice cases filed with the NLRB involving employers' restrictions and/or discipline of employees who posted material on social media internet sites.  In some instances, the NLRB found that employees were wrongfully disciplined by their employers for engaging in activity protected by the National Labor Relations Act.  The NLRB concluded that in other cases, the disciplined employees had not engaged in protected activities and merely had posted their individual gripes.

     However, the General Counsel also addressed cases where the employer's social media policy and/or rules were at issue, even though no employee had suffered adverse employment action.  The General Counsel concluded that because the policies or rules, themselves, could reasonably be construed by employees as prohibiting protected activities under the NLRA; or because the rules were in response to protected activity; or because the rules were applied to restrict protected activity, the employer had committed an unfair labor practice.  In one such instance, the General Counsel opined that the employer's rule prohibiting the posting of the company's logo and uniforms was unlawful.  In another case, the General Counsel said that a broad rule prohibiting the posting of private or confidential information, information that might damage the goodwill of the employer or its employees, also was unlawful.

     Although the policy memorandum does not have the force of law, it is a clear indication of how the NLRB intends to proceed with social media issues.  We recommend that you review your social network policy with legal counsel, as well as its application.  If you have any questions, please contact John R. McGlinchey or Kristen L. Baiardi at (313) 566-2500.