In a Jan. 2014 interview with Law360, National Labor Relations Board (NLRB) Chairman Mark G. Pearce and Board Member Philip A. Miscimarra confirmed that the Board will continue its emphasis on social media cases. Chairman Pearce favorably noted the widespread publicity the Board received from its social media decisions and also hinted that the Board could announce entirely new social media standards in the future, which should give employers little comfort.
Although Chairman Pearce stated that that the Board has applied and will continue to apply its “established standards” to social media cases, Mr. Miscimarra acknowledged widespread confusion among employers in this context. The NLRB General Counsel memoranda issued on Aug. 18, 2011, Jan. 24, 2012, and May 30, 2012 continue to provide the best guidance to employers on the Board’s current standard. In particular, the May 30, 2012 memorandum attached a Wal-Mart policy that the General Counsel found to be in compliance.
Based on those memoranda and decided cases to date, several general rules of thumb exist.
Chairman Pearce’s comments about potential new social media standards should be concerning to employers. The Board has several social media cases currently pending, and the Chairman stated that the Board would be issuing a large number of decisions involving social media during 2014. Thus, employers should pay close attention to the Board’s forthcoming social media decisions for additional guidance as to what the NLRB deems to be acceptable with respect to social media policies and other matters, such as an employee’s right to use his or her employer’s e-mail system.
For assistance in updating your company’s social media policy or with the application of NLRB social media decisions in your workplace, please reach out to your McGuireWoods contact or a member of the firm’s traditional labor group.