By Molly Eastman

The General Counsel-side of the NLRB has been busy investigating and prosecuting unfair labor practice charges involving social media in 2011 and 2012. As evidenced in his two Operations Memoranda pertaining to social media cases, i.e., OM 12-31 (which can be viewed HERE) and OM 11-74 (which can be viewed HERE), Acting General Counsel Lafe Solomon is highly interested in prosecuting social media cases involving both non-unionized and unionized workforces.

OM 12-31, which Solomon issued on January 24, 2012, highlights 14 social media cases being investigated and/or litigated since OM 11-74 issued on August 18, 2011. It underscores the NLRB regional offices’ aggressive investigation of unfair labor practice charges involving social media. Indeed, Solomon has found social media cases sufficiently important to require all regional offices to forward any social media-related charges to the NLRB’s Division of Advice.

Social media charges are one of three ilk: 1) allegedly unlawful social media policies; 2) allegedly unlawful discipline for social media activity; or 3) a combination of both. Among the 14 cases summarized in OM 12-31, five discharges for Facebook comments were deemed to be unlawful under NLRA Section 8(a)(1), and four social media policies were deemed unlawfully broad under Section 8(a)(1). The summarized cases demonstrate just how broadly the regional offices, Acting General Counsel, and Division of Advice construe “protected” and “concerted” activity in the social media context, and how often they read social media policies to prohibit protected, concerted activity.

For example, in one of the summarized cases, an employee was disciplined for posting an online letter to the editor stating that the hospital’s business plan had led to the destruction of life at the hospital, and was ultimately terminated for a later Facebook comment that, “under the leadership of the [hospital’s] CEO, there had been multiple unfair labor practices filed, forced policy changes, a murder/suicide, unfair firings, harassment, and workplace bullying.” These statements, and others, were found to be protected, concerted activity, thus making the resulting discipline unlawful under Section 8(a)(1). Although the hospital argued that the statements were unprotected defamation, they were deemed to be, at worst, “rhetorical hyperbole” that remained protected by the NLRA because they were not maliciously false.

In another case, the employer’s social media policy stated that, “in external social networking situations, employees should generally avoid identifying themselves as the Employer’s employees, unless there [is] a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner.” The policy was determined to violate Section 8(a)(1) because “the Employer’s rule limits employee discussion to terms and conditions of employment to discussions conducted in an ‘appropriate’ manner, thereby implicitly prohibiting ‘inappropriate’ discussions of terms and conditions of employment,” and employees would “reasonably interpret the rule to prohibit protected activity, including criticism of the Employer’s labor policies, treatment of employees, and terms and conditions of employment.”

The Board itself has yet to actually rule on a social media case, but three are currently pending before it. We expect a Board ruling on one of these cases relatively soon given the now fully, albeit controversially, staffed Board and the publicity surrounding these types of cases. Employers should strongly consider reviewing and revising their social media policies and consulting with legal counsel regarding any discipline related to social media in light of the NLRB’s propensity to prosecute these cases and the looming Board decisions. The Board’s anticipated rulings likely will make it even more difficult for employers to effectively deal with employees’ disparaging, easily published, and easily disseminated speech against employers through social media.

Molly Eastman is a partner in Seyfarth’s Chicago office.