Various labor & employment blogs over the last week have been nearly hyperventilating over another complaint by a regional NLRB office challenging an employer’s practices as it relates to employee use of Facebook.
For anyone who has been tracking the NLRB’s actions, these filings really should come as no surprise anymore.
The agency has consistently said for many months now that it would be filing various enforcement actions to test the boundaries of the “concerted activities” clause and the extent it applies to social networking activities. And it has filed several such complaints. Many have settled quietly.
(As an aside, we also need to be careful to differentiate between the cases instead of calling each of them “Facebook firings”. While the AMR case last fall was the original “Facebook Firing” case, these other cases are more accurately described as “Concerted Activities Cases” where social media is used. If you have a better name, suggest it in the comments below. )
So, unless something truly newsworthy comes out, I propose a moratorium on reporting on each and every new case that is filed. Instead, let’s wait for actual NLRB decisions and court cases that analyze and rule on the issue. Until then, we simply do not know whether the NLRB’s aggressive filing of complaints will pass muster under a legal analysis.
In the meantime, employers by now should be aware that the NLRB is watching over employers’ policies on social media usage by employees. As I’ve said time and time again, proceed cautiously.