The NLRB and Social Media: Does the NLRB "Like" Employee Interests?
Hemenway, Alexandra, Journal of Corporation Law
I. INTRODUCTION II. BACKGROUND A. The Definition and Scope of Section 7 Rights: What Is "Concerted Activity?" B. What Is Not Section 7 "Concerted Activity": How an Employee Can Lose Section 7 Protections C. How the Board Defines "Concerted Activity" Within the Social Media Context 1. How the Board Defines "Concerted Activity" Within the Context of Employers' Social Media Policies a. The Board's Decision in Sears Holdings (Roebucks) b. The Board's Decision in American Medical Response of Connecticut 2. How the Board Defines "Concerted Activity" Within the Context of Employers' Disciplinary Action Against Employees Due to the Content of Social Media Posts a. Wal-Mart: "Mere Griping" Is Not Protected Activity b. AMR Revisited: The Famous "Facebook Firing Case" c. Karl Knauz Motors III. ANALYSIS A. Is the Board Examining Employers' Social Media Policies in a Consistent Manner? 1. Does the Board Require a "Reasonable Reading" of an Employer's Rule? 2. Does the Board Require "Limiting Language" in Employers' Social Media Policies? B. Has the Board Properly Guided Corporate Employers About When They May Rightfully Terminate Employees Because of a Social Media Post? 1. The Ambiguity of the "Group Action" Requirement 2. What Is a True "Individual Gripe?" IV. RECOMMENDATION A. The Requirement of Guidance: Social Media Policies Should Be Clear B. If Employees Engage in Conversation Employers Should Proceed with Caution 1. Requiring an Ongoing Trademark Claims Service 2. Expanding the Instances When Trademark Holders Would Be Notified of Infringement V. CONCLUSION
Social media's growing impact on corporate society is staggering. (1) Indeed Facebook is estimated to have one billion active users, (2) and Twitter is estimated to have 175 million registered users. (3) This increase in social media's popularity has created new challenges for traditional labor law. (4) In fact, the National Labor Relations Board (the Board or NLRB) has recently met the social media issue head-on in its decision involving the famous "Facebook firing" cases. (5) Indeed, over the last few years the Board has considered over 129 cases involving social media. (6) In the majority of these cases the Board primarily focuses upon two issues: (1) whether an employer has an overbroad social media policy that unlawfully restricts an employee's use of social media, and (2) whether an employer has unlawfully terminated an employee for the content of the employee's social media post. (7) In many of these cases the Board has found that a employer's social media policy or that the termination of an employee was unlawful because the employer's action violated the employee's section 7 rights under the National Labor Relations Act (NLRA), 29 U.S.C. [section][section] 157, 158 (1947). (8) This Note suggests that the Board's stance of protecting employees' section 7 rights in the social media cases is inconsistent with prior precedent and sends conflicting signals to employers. (9)
The NLRB is a federal administrative agency that prohibits employers from "interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment, or from refraining from any such activity." (10) The NLRA protects employees who fit within the statutory definition of employee as defined in section 2(3) of the NLRA. (11) Thus, the NLRA covers employees in both the public and private sectors. (12) The Board, as an independent federal agency, acts on behalf of employees and protects employee rights under the NLRA. …