Today, the National Labor Relations Board (NLRB) Acting General Counsel Lafe Solomon released his second report describing 14 social media cases, all fact-specific, that his office has reviewed. Half cover questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.

The remaining cases involved discharges of employees after they posted comments to Facebook. Most discharges were found to be unlawful because they flowed from unlawful policies. Only one case upheld the discharge, despite an unlawful policy, because the employee’s posting was not work-related.

The report underscores the two main points he made earlier:

• Employer policies should be drafted so as not to prohibit protected activity such as the employees discussing wages or working conditions.
• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Solomon also has asked regional offices to send cases they believe to be meritorious to NLRB headquarters Washington D.C to allow for tracking and consistency.  About 75 cases have been forwarded to the office to date. Clearly, controlling how to interpret the law regarding postings on social media, a form of communication that did not exist when the National Labor Relations Act was written in 1935, is worth following.

The report shows only how Solomon’s office has reacted to employers’ policies and their treatment of employees who create social media postings.  The Board has yet to weigh in on this issue, although there are three cases awaiting decision.