December 02, 2011
Since last fall when the NLRB’s Acting General Counsel, Lafe Solomon, took the unprecedented step of filing a complaint against a company for disciplining an employee for posting a derogatory remark about her supervisor on her Facebook page, the Agency has been flooded with social media-related charges. Solomon has also targeted companies’ social media policies (union and non-union alike) which he believes may potentially interfere with an employee’s right to engage in protected concerted activity such as discussing the terms and conditions of employment. Employers, however, are not drafting such policies to interfere with employees’ labor rights, but instead, they are intended to protect the company’s brand, restrict disclosure of confidential information or trades secrets, and protect co-worker and employee privacy. Moreover, as noted in a recent Wall Street Journal article, “companies are confused” because the NLRB has provided scant guidance on how to draft social media policies that comply with the NLRA. Indeed, as Mike Peterson, Vice President of Benefits and Employment Policy, for the Association stated in the article: “You have an agency that comes in and is pretty aggressive on these issues, but isn’t really clear on drawing lines.” Solomon recognized that it could be difficult for companies, but reiterated that “each case is very different.” With the Board unlikely to rule on a social media case in the foreseeable future, this uncertainty is likely to continue.