NLRA Social Media Memo Analysis: The Blueprint

Last week, the NLRB issued a memo from general counsel: Report of the Acting General Counsel Concerning Social Media Cases. I spent some time this weekend reading the memo and trying to analyze it (yeah, that’s really how I spent my weekend… don’t judge me). I plan to do a series of posts analyzing the memo, but I first want to present a plan of attack. I see the memo as addressing four major issues:

• Why are some Facebook and other social media posts that include juvenile gripes, name-calling, and profanity covered? 
• Why are similarly immature posts not covered? 
• Why does the NLRB think so many social media employee policies violate the NLRA? 
• Finally, there’s one case standing for the unremarkable proposition that union organizers showing up at a nonunion work site and harassing immigrant workers, and then posting video of it on YouTube, violates the NLRA. 

I plan a post on each of these issues. Who knows, maybe I’ll even write some more follow-up. Using examples from the memo, I think the primary concern for employers boils down to this: Why are directing profanity and sarcasm at a co-worker, calling a supervisor a “scumbag” mental patient, and calling the owner an “asshole” all protected… but calling a supervisor a “super mega puta,” and hoping “redneck” customers choke on glass are not?

Of course, the answer is "context" – and that will be the focus of my posts.

Update (8/22/2011): First post is now up: NLRB Social Media Memo Part I - NLRA-Protected Acts.

Update (8/24/2011): Second Post is now up: NLRB Social Media Memo Part II - Unprotected Conduct.

Update (9/5/2011): Third Post is now up: NLRB Social Media Memo Part III - Union YouTube Violation.

Update (10/10/2011): Fourth and final post is now up: NLRB Social Media Memo Part IV - Overly Broad Policies.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.