The NLRB Is Expanding Private-Sector Employee Rights By Declaring Common Workplace Rules Unlawful

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Employers have long sought to present their public image in a positive light.  Such policies typically prohibit employees from discussing corporate matters publicly or disparaging managers, co-workers, or the company itself on Facebook and other social media.

However, within the past several months, the National Labor Relations Board (or NLRB) has declared many blanket restrictions on such speech to be illegal.  The NLRB’s rulings generally tell employers that it is illegal to adopt broad social media policies that discourage workers from exercising their right to communicate with one another with the purpose of improving wages, benefits, or working conditions.  These rulings apply to all private-sector employers.

Where appropriate, employers should consider revising their social networking policies with the assistance of experienced counsel.  If an employer’s personnel policy, work rule, or employee handbook contains any language that may be understood to infringe on its employees’ abilities, during their non-work time, to communicate with their colleagues, a union, or the public about their wages or other terms or conditions of employment, the employer should revise the policy to clarify it does not reach activity protected by the National Labor Relations Act (NLRA).  Furthermore, before taking disciplinary action against employees based on their social-networking activities, employers and their counsel should consider whether the employees’ activity constitutes protected, concerted activity under the NLRA.

We will continue to closely monitor legal developments in this area.

Click here for the December 14, 2012, NLRB decision in Hispanics United of Buffalo, Inc., case no. 03-CA-027872.


About the Authors

Jonathan Minear

Jon is an aggressive, outcome-oriented civil litigator who focuses his practice on complex commercial disputes, personal injury, employment, and medical and legal malpractice. He advises small to mid-sized companies, organizations, and individuals in risk management, and he represents them in a broad range of disputes in both state and federal court. In addition, he has successfully represented clients in appeals heard by all levels of the Washington appellate courts and the Ninth Circuit Court of Appeals. Super Lawyers Magazine has recognized him as a Rising Star every year since 2012.

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