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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

The National Labor Relations Board is at it again.

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In August 2011, its Acting General Counsel, Lafe E. Solomon, <a href="http://www.wassom.com/nlrb-releases-detailed-memo-summarizing-its-social-media-cases.html" target="_blank" rel="noreferrer noopener">issued a report</a> summarizing several of its then-pending enforcement actions dealing with social media.&nbsp; These are disputes in which an employee was disciplined or terminated for something he or she posted online.&nbsp; In many of these cases, the NLRB sided with the employee, bringing charges against the employers for infringing the employees' federal right to engage in "concerted activity."

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Six months later, Solomon recognizes that "these issues and their treatment by the NLRB continue to be a 'hot topic' among practitioners, human resources professionals, the media, and the public."&nbsp; Therefore, in an attempt to keep all of these audiences informed on what the Board is thinking and where its efforts are headed, Solomon released <a href="http://privacyblog.littler.com/uploads/file/NLRBGCMemoJanuary242012.pdf" target="_blank" rel="noreferrer noopener">a followup report</a> on January 24, 2012.&nbsp; This document summarizes "fourteen recent cases that present emerging issues in the context of social media [and employment law]."

One notable aspect of these cases is that the Board appears to be focusing even more of its attention on the employer's social media policy, as opposed to just the facts of individual employees' dismissal.&nbsp; In some cases, even when the Board agreed with a termination, it still punished the employer for language in social media policies that, if read literally, gave the employer too much discretion over employee behavior.

As I did <a href="http://www.wassom.com/nlrb-releases-detailed-memo-summarizing-its-social-media-cases.html" target="_blank" rel="noreferrer noopener">last time</a>, instead of analyzing each case at length, I'll reprint the headlines from each section in <a href="http://privacyblog.littler.com/uploads/file/NLRBGCMemoJanuary242012.pdf" target="_blank" rel="noreferrer noopener">the report</a>.&nbsp; This will give you an idea of why the NLRB considers these 14 cases to be important representations of the "emerging issues" in this area of law:

Discharge for Facebook Comments and for Violation of Non-Disparagement Rule Was Unlawful

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Discharge for Facebook Comments Was Lawful, But Social Media Policy and No-Solicitation Rule Were Overly Broad

Employer's Social Media Policy Was Overbroad, But Employee's Facebook Posts Were Not Protected

Portions of Employer's Communications Systems Policy Were Overbroad

Employer's Initial Social Media Policy Was Overbroad, But Amended Version Was Lawful

Provisions in Drugstore Operator's Social Media Policy Withstand Scrutiny

Employee Was Unlawfully Discharged for Her Facebook Complaint About Reprimand

Employees' Facebook Postings About Supervisor and Promotion Selection Were Protected Concerted Activity

Employee's Facebook Postings About Manager's Attitude and Style Were Protected Concerted Activity

Employee's Critical Online Postings Were Protected Concerted Activity That Did Not Lose Act's Protection

Employee's Facebook Postings About Irritating Coworker and Workplace Incident Were Not Protected

Truck Driver Was Not Engaged in Concerted Activity and Was Not Constructively Discharged

Employee's Facebook Criticism of Supervisor Was Venting and Was Not Concerted

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Augmented Legality

Emerging Media and Technologies

Partner

Brian D. Wassom

Information Technology Transactions

New Year Bring New Guidance from NLRB on Employees and Social Media

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