By: Michael Scheiner
Any mention of labor unions in casual conservation usually brings with it images of employees picketing outside their place of work, clearly displaying their distastes regarding their employer’s workplace policies—what labor law refers to as concerted action. The advent of social media; however, has added a novel wrinkle to this area of law as employees have now taken to social media outlets such as Twitter and Facebook to voice their displeasure about workplace conditions. This intersection of social media and labor law has raised the critical question of whether the concept of protected concerted action extends to employees’ utilization of social media.
The National Labor Relations Board (NLRB) seems to think so. In what was deemed a “ground-breaking case involving workers and social media”, the NLRB issued a complaint in October which deemed an ambulance service’s firing of an employee for criticizing her supervisor on Facebook as an illegal action. In his assessment of this case, Lafe Solomon—the NLRB’s acting general counsel—has made it clear that employers’ overly broad policies regarding social media use will not be tolerated: “This is a fairly straightforward case under the National Labor Relations Act—whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”
The line between protected activity and unprotected activity, however, seems to be anything but straightforward. A recent U.S. Chamber of Commerce survey of Social Media issues being decided by the NLRB has pointed out that there is significant gray area in determining whether an employee’s social media use concerns workplace conditions or is more properly characterized as “mere griping.” To illustrate this point, consider the plethora of profanity-laced status updates concerning an employee’s dissatisfaction with their employer—on both a personal and work-related level—which we all have encountered on our Facebook newsfeeds. At what point has the employee crossed over from the sacred protection of concerted action to the dangerous and unchartered territory of disloyalty to an employer?
The constant mantra regarding social media, especially in the context of employment, has always been “be careful what you post”—a warning based on the assumption that employers possess unlimited latitude in discharging employees for their use of Facebook and Twitter. The NLRB, however, has demonstrated that employees are not at the mercy of their employer’s unbridled discretion. In a way, the tables have turned: employers must now be careful in the way they approach disciplinary and discharge policies related to social media.
 Steven Greenhouse, Company Accused of Firing Over Facebook Post, New York Times, November 9, 2010, at B1, available at, http://www.nytimes.com/2010/11/09/business/09facebook.html.
 Michael J. Eastman, Executive Director, Labor Law Policy, U.S. Chamber of Commerce, A Survey of Social Media Issues Before the NLRB, August 5, 2011, available at http://www.uschamber.com/sites/default/files/reports/NLRB%20Social%20Media%20Survey.pdf