Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

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Last week, NLRB Acting General Counsel Lafe Solomon issued a second Operations Management Memo (OMM), covering 14 new employment cases concerning employee use of Facebook. It took me until now to read the 35 page memo, and synthesize the information for a blog. My first impression of the new cases is shock over the general decline in civility of employees, and the lack of boundaries they exhibit when they use Facebook to vent about work, co-workers, and supervisors. The cases read like employees gone wild, with vulgar, obscene rants aimed at their employers.

Seven of the new cases involved questions about the employer’s social media policies being too broad, and therefore unlawful. In 5 of the cases, the employer’s social media policy was determined to be overly broad and restrictive of employee rights.

Seven of the cases concerned employee use of Facebook. Specifically, employees made disparaging posts about work issues including complaining about not being promoted, poor management attitudes, and irritating, lazy co-workers. In 4 of those cases, the NLRB ruled the employee’s disparaging comments were protected concerted activity under Section 7 of the NLRA.

Notes to the Operations Management Memo underscore two main points: 

"Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees." 

I have blogged in the past about other NLRB decisions and the previous OMM issued in August, 2011. Actions Employers should take right now:

1. Conduct an immediate review of workplace social media policies to make sure the policies are not overbroad.
2. Managers should be trained on employee use of social media. Businesses are held responsible for the actions of their managers should they threaten or discipline employees for rants on social media sites.
3. Don’t panic. The social media cases are very fact-specific. Review facts and make intentional decisions in light of the guidance offered in the OMM.
4. Get legal advice early. It could be very cost-effective in the long- run.