As you have probably noticed, the interaction between social media and federal labor law has been one of this blog’s favorite topics, which we have addressed on multiple occasions. On August 18, 2011, the National Labor Relations Board’s Acting General Counsel ("AGC") issued a report that summarizes the General Counsel’s Office’s view on a variety of cases in which Regional Directors sought advice on social media issues and therefore provides excellent guidance to employers. With one exception, the topics addressed in the Report fall into two broad categories:
- First, the Report addresses when an employee’s social media activity is protected concerted activity under the National Labor Relations Act ("NLRA"), which may not be restricted by the employer.
- Second, the Report addresses the extent to which employers’ social media policies in general are so overly broad that they could be reasonably construed to prohibit employee rights to engage in concerted activity. The one exception addressed the question of union coercion of employees of a non-union employer. In that case, the union attempted to coerce the employees by making them believe that they were in danger of being deported for immigration violations. The union videotaped these interrogations and then posted edited versions on Youtube and Facebook. The AGC concluded that the threats and videotaping themselves violated the employees rights to refrain from union activity and that the postings on Youtube and Facebook unlawfully conveyed the same coercive message to any employees who may have viewed them.