NLRB General Counsel Offers Guidance to Employers on Social Media Policies

An employee engaged in protected concerted activity when she communicated via Facebook with co-workers regarding her job performance prior to a meeting with her supervisor regarding concerns raised about her by another co-worker.

An employer's social media policy prohibiting, among other things, disparaging comments about the company and its employees, was overly broad because it could include protected communications.  Another employer's policy prohibiting "inappropriate" discussions about the company, management and coworkers was similarly found to be overly broad because it did not define "inappropriate." 

A sales employee was protected when he posted disparaging comments and pictures regarding a promotional event by his employer because it reflected the views of many of his co-employees that the event was poorly handled and harmed their ability to make sales.

 A newspaper reporter was not protected when he posted tweets that were critical of the paper because his concerns had nothing to do with his terms and conditions of employment. 

Several other instances are cited where the employees were not protected, even when their Facebook postings involved terms and conditions of employment, because they did not discuss those postings with their coworkers or receive responses from them sharing views about the complaint.  In one case, mere expressions of sympathy by co-workers (e.g., "hang in there") did not suffice to make the activity concerted.

 A union violated nonunion construction workers' rights by posting a video on YouTube of interrogations of them about their lawful status as immigrants.

Although other aspects of its policy were unlawful, a supermarket's ban on employees pressuring other employees to "friend" them on Facebook was not overly broad since they could otherwise contact them to engage in protected activity.

A company did not violate employees' rights by requiring that all official external communications by the company occur through the company's media office, because employees would not reasonably interpret this as restricting their ability to contact the media on their own behalf about their working conditions.