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Social Media and the National Labor Relations Act: What Employers Need to Know in Drafting and Updating Their Social Media Policies

Posted in Employment Law

This article was first published by ALM Media Properties LLC in Internet Law & Strategy (January 2013).

For over a year, the National Labor Relations Board (NLRB) has been taking employers to task for intruding too far into employees’ social media activities. The NLRB’s enforcement actions have provided a well-publicized reminder that the protections of the National Labor Relations Act (NLRA) are alive and well, applying with as much force to employees’ use of social media as to picketing or other traditional forms of collective activity, and to both non-union and unionized workforces.

The NLRB’s activity in this area has important consequences for employers. While employers may seek to regulate what employees may or may not say in their social media postings, this objective may be at odds with current NLRB authority. When considering the likelihood of enforcement action, it is noteworthy that the NLRB has taken action against employers ranging from large corporations to small businesses and non-profits. This underscores that the NLRB’s enforcement priorities are not limited to any single organizational profile.

We offer below a set of frequently asked questions (“FAQs”) with answers distilling the key points that U.S. employers should understand about this new area of NLRA enforcement activity. These FAQs are accompanied by practical suggestions to help employers navigate these issues in drafting and updating their own social media policies.

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