The National Labor Relations Board is at it again.
In August 2011, its Acting General Counsel, Lafe E. Solomon, issued a report summarizing several of its then-pending enforcement actions dealing with social media. These are disputes in which an employee was disciplined or terminated for something he or she posted online. 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."
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." 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 followup report on January 24, 2012. 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. 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 last time, instead of analyzing each case at length, I'll reprint the headlines from each section in the report. 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: