The NLRB is reporting a surge in complaints related to Facebook and other social media postings while businesses growing increasingly uncertain about what they can and cannot demand in a social media policy. “Most of the social media policies that we’ve been presented are very, very overbroad,” said the board’s acting general counsel Lafe Solomon said in an interview last month. “They say you can’t disparage or criticize the company in any way on social media, and that is not true under the law.” The NLRA protects both union and nonunion workers when they engage in “protected concerted activity.” Yet online comments about a company can be seen by and are searchable to thousands, those comments remain cached forever and on-line forums, however small, cannot be well compared to workers huddling together over coffee at Denny’s crabbing about the boss. “Employers are struggling to figure out what the right policies are and what they should do when these cases arise,” said Michael Eastman, labor law policy director at the U.S. Chamber of Commerce. “Where will the board draw the line between concerted activity and an employer’s legitimate non-disparagement policy?” Apparently no one is quite sure just yet.
