On August 8, 2011, Anne Purcell, the Associate General Counsel for the NLRB released a memo entitled “Report of the Acting General Counsel Concerning Social Media Cases.” The report details recent case developments arising in the context of social media. These recent cases grappled with 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.
The NLRB has a mandate to protect employees rights to organize and discuss working conditions without fear of reprisals from employers. The report began by analyzing a case of first impression: whether an Employer unlawfully discharged five employees who had posted comments on Facebook relating to allegations of poor job performance previously expressed by one of their coworkers.
The discussion was conducted through Facebook by coworkers about job performance and staffing level issues. The NLRB found the Facebook discussion was a “textbook” example of protected activity, even though it transpired on a social network platform.
The take away for Employers is that most, if not all, job related social media discussions are protected. Employers must think twice before: (1) dismissing employees for discussing workplace “responsibilities and performance” on the Internet; (2) disciplining employees for “liking” a Facebook comment that is critical of the workplace or employer; and (3) disciplining employees when offline workplace complaints and conversations migrate online via one or more social media posts.
The full text of the memo is available here: http://mynlrb.nlrb.gov/link/document.aspx/09031d458056e743