Facebook Meets the NLRB: Employee Online Communications and Unfair Labor Practices

Abstract

In the past eighteen months, the National Labor Relations Board (“NLRB”) has received approximately one hundred charges from employees that were disciplined or fired as a result of their work-related online communications, principally through Facebook. These and other charges have resulted in twenty-one NLRB Office of the General Counsel Advice Memoranda, ten General Counsel reviews, four Administrative Law Judge (“ALJ”) decisions, and one Board decision, all addressing employee use of social media. This Article is the first to examine in detail those employee charges and the thirty-six incidents addressed by the Office of the General Counsel, the ALJs, and the Board. This Article’s analysis reveals that, based on these charges and incidents, most employees are not engaging online in concerted activities protected by the National Labor Relations Act. Rather, for the most part, they are griping about work and getting fired for it. However, these charges and incidents have raised concerns over the enforcement of overly broad social media policies by employers. Most importantly, the nature of social media technologies raises new issues of unlawful employer surveillance that have yet to be directly addressed by the NLRB. These three issues are examined through this article: determining when employee online communications are protected concerted activity, determining what constitutes an acceptable social media policy, and determining when an employer might engage in unlawful online surveillance.