On January 24, 2012, the Acting General Counsel of the National Labor Relations Board issued a second report on social media cases, just six months after the GC’s last report on the subject. In this latest document, the Obama Board continues to refine its analysis of the two most common issues presented to it in social media cases: whether the employer’s policy itself is overbroad and thus violates employees’ right to engage in concerted and protected activity under Section 7 of the National Labor Relations Act; and whether the employee action at issue is truly concerted and protected by the NLRA.
In sum, the Board remains highly critical of most broadly worded policies seeking to regulate online comments that disparage employers, supervisors or co-workers, but recognizes that employee postings not clearly part of, or looking toward, group action are unprotected and the proper subject for discipline. Thus, the report delivers something of a good news/bad news message for businesses.
