The Top Ten NLRB Cases on Facebook Firings and Employer Social Media Policies

Abstract

Social media have profoundly changed communications for our personal and professional lives, from social networking to job searching, to social movements and more. Facebook, Twitter, Linkedin, Pinterest, tumblr, instagram, blogs, as well as emerging social media concepts, have re-imagined our methods and means for speech, interaction and connection. Computers, iPads and smartphones are the means for this intense multi-platform engagement in social media, resulting in the blurring of work and personal time, on work and personal equipment as well as accounts. This further complicates the employment relationship as companies seek to protect their brand, trade secrets and employee communications by publishing social media policies (SMPs). In the context of unfair labor practice cases, the National Labor Relations Board has been reviewing employer social media policies and actions that interfere with rights that apply whether employees are in a union or not. This article outlines the top ten cases in this area to instruct employers and employees on what policies and comments are lawful or protected. The cases encompass employer policies that an employee would reasonably perceive to infringe upon employee rights to engage in National Labor Relations Act- protected concerted activities, and instances where an employee is disciplined or discharged for engaging in protected activity.

Keywords: social media, Facebook, instagram, Twitter, tumblr, Pinterest, Linkedin, blog, ipad, computer, networking, national labor relations board, social media policy, employer, employee, protected concerted activity, unfair labor practice, fire, discipline, adverse, nlrb, member, national labor relations

JEL Classification: J5, J52, K19, K29, K31, M12, M14, M30