Arianna R. Levinson
Labor Law Issues: Employer Social Media Policies; Disciplining Employees for Social Media Postings
This chapter addresses the increasingly important issue of how the National Labor Relations Act (NLRA or Act) applies to postings by employees on social media. It argues that in large part the National Labor Relations Board (NLRB or Board) has correctly applied the age-old concept of protected concerted activity to new technological meeting places. The legal concepts at issue are founded in long-standing precedent. This chapter buttresses the claim that Board regulation of social media policies is consistent with past-practice and precedent by analogy to Board precedent governing employer policies on solicitation and distribution and on the wearing of insignia, which are similar to the social media policies currently being regulated. Despite differences in the use of an electronic meeting place from that of the water cooler, slight changes to the current doctrine, such as a clear explanation of when employees’ activity is for mutual aid and protection, would place the Board on even sounder footing.