Over the past several years, the National Labor Relations Board has been aggressively enforcing the National Labor Relations Act as it applies to employers’ social media policies as cyberspace has emerged as a forum for employees to discuss workplace conditions. On March 18, the board’s general counsel issued a comprehensive memorandum providing specific examples of lawful and unlawful social media rules (as well as addressing other personnel rules) and addressing provisions of Wendy’s International LLC’s rules the board found to be unlawful during a 2014 settlement of an unfair labor practice complaint. While every employer with social media policies should carefully review their rules in light of the general counsel’s memorandum (available on the NLRB’s website), this article will provide a brief overview of the act as it applies to such policies, synthesize key portions of Wendy’s policies and highlight two noteworthy board decisions involving policies issued after the general counsel’s memorandum.
The NLRA, which applies to virtually all private-sector employers, gives employees the right to engage in “protected concerted activity” for their “mutual aid and protection” free from employer interference, restraint or coercion. In plain English, this means that employees have the right to discuss with their co-workers and the public not only on union-related issues, but also matters relating to their wages, benefits, hours and working conditions, without employer interference.
