The NLRB Acting General Counsel Lafe E. Solomon has issued a Memorandum (OM 11-74) to Board regional officials, dated August 18, 2011, describing his Office's actions involving social media cases in the past year. Solomon explains: "Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media." The full report is available from the NLRB's website here.
Board social media cases generally involve claims of protected concerted activity by employees under Section 7 of the NLRA. Since these cases often turn on the unique facts presented to the Agency, consultation with labor counsel is recommended for employers facing NLRB charges involving employees' use of Facebook, Twitter and other such media. However, the Acting General Counsel's Memorandum offers useful insights into the Board prosecutor's approach to these kinds of cases in the circumstances described.
If you have any questions about the Memorandum or the NLRA, please contact Richard Greenberg.