Five Recent NLRB Cases Provide Further Insight on Structuring Employers’ Social Media Policies

Employers, struggling to regulate employees’ work-related social media postings, recently suffered a string of defeats in National Labor Relations Board (NLRB) cases challenging their social media and related communications policies. The six cases, decided in the past two months, which resulted in five losses1 and only one victory for employers,2 demonstrate that the NLRB continues to use social media and other common communications policies as a vehicle to aggressively inject itself into the non-union workplace as the number of unionized workers continues to diminish. These cases also highlight the need for all employers to scrutinize their social media policies in an effort to determine whether employees reasonably would read them to prohibit discussion about the terms and conditions of employment for the mutual aid and benefit of the workforce, the applicable standard under Section 7 of the National Labor Relations Act (NLRA or “the Act”) for protected concerted activity.