Recent NLRB Activity Has Implications for Social Media

Tuesday, March 6, 2018

It has been a busy few months at the National Labor Relations Board (NLRB). Since December 2017, the NLRB has: released more than 40 advice memoranda containing guidance on a plethora of labor issues; overruled the joint employer test it adopted in 2015 in Browning-Ferris Industries, and then vacated its decision (Hy-Brand Industrial Contractors, Ltd.) due to a board member’s conflict of interest; and issued decisions in three other cases that significantly alter the standards applied to micro-bargaining (PCC Structurals, Inc.), unilateral changes (Raytheon Network Centric Systems), and employee handbooks (The Boeing Company). Two of these developments have implications for social media in the workplace.

First, in one of the advice memoranda released by the NLRB (Team Fishel), the NLRB’s Division of Advice concluded that a policy restricting the use of social media on company equipment was unlawfully overbroad and represented an opportunity to extend the Board’s decision in Purple Communications to social media. In Purple Communications, the Board held that employees who have been given access to a company email system have a presumptive right to use email to communicate about the terms and conditions of their employment during non-working time. According to the Division of Advice, although Purple Communications was limited to the use of company-provided email, the “internet, including social media, shares many of the email-related attributes that were discussed by the Board in Purple Communications.” Those similarities weighed in favor of giving employees a presumptive right to use social media as a means of communicating about Section 7 activities during non-working time.

Second, with its decision in The Boeing Company, the NLRB threw out the standard it has used to determine whether handbook policies, including social media policies, are lawful. That standard, which the NLRB adopted in 2004 in Lutheran Heritage Village-Livonia, focused on whether a policy could “reasonably be construed” by employees as chilling protected rights under the National Labor Relations Act (NLRA). The breadth of this standard made it difficult for employers to craft compliant policies on social media and other topics, despite attempts by the NLRB’s Office of the General Counsel to provide guidance. Now, under a new standard announced in The Boeing Company, the NLRB will consider both the impact that a workplace policy may have on NLRA rights, and the employer’s legitimate justifications for the policy.