Employee Social Media Policies After NLRB Appointments Invalidated by Federal Court … Everything You Know Is Wrong?

In the latest chapter of some inside-the-Beltway wrangling over the validity of recess appointments by President Obama of National Labor Relations Board members, the DC Circuit Court of Appeals held the appointments to be invalid, thus invalidating all NLRB decisions in which these members had participated. These include, of course, some decisions touching on the regulation of employee use of social media by employees, whether or not the workforce is unionized.  A number of the decisions made by the NLRB over time, and policies and principles to be drawn from the cases and the relevant law, are collected in three social media reports issued by the NLRB Office of General Counsel.  (All three issued to date are linked to from the linked presser.)  Some of the most recent NLRB social media cases are described in a recent news report which includes a question from an industry opponent of the Board's meddling as to why the NLRB is getting involved in social media regulation — is it because of the shrinkage of labor unions and the declining relevance of the Board?

Some of the legal community's thoughts on the validity of the NLRB's social media views collected by Lance Godard suggest that we'll have to wait a while to see how this all shakes out before we can know what to do next … but for now, Everything You Know is Wrong. Of course, in the real world, we do not have the luxury of waiting. Health care employers — and all other employers — need to know today what to ask of their workforces when it comes to appropriate use of social media.

The basic premise of the NLRB in entering the fray is that an employer may not limit employee discussion of conditions of employment (union shop or not) via social media, just as it may not in real life. Other speech on social media may be limited by employers on social media, just as it may be in real life. A crime reporter announcing publicly that his town needs more murders because he has nothing to write about may be fired whether he says it on Twitter — them's the facts and holding of a recent NLRB case — or through some other platform. I don't think we need to retreat and consider the principle behind this holding invalid while the inside-the-beltway muck and mire is cleaned up.

The twin danger zones for employers have not changed in light of the invalidation of these NLRB rulings. It is always possible to over-regulate or under-regulate the use of social media by employees, whether during working hours or otherwise. Policies in this realm need to be informed by an understanding of the law, an understanding of what it means to be part of an employer's workforce in 2013, and an understanding of the uses and the powers of social media.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting