Solidarity on Social Media

Levinson, Ariana R.

As with other technical revolutions before it, such as the printing press, radio, and telephone, social media has changed the way in which people communicate. Due to cases involving the use of social media by employees, among other reasons, the often little-known National Labor Relations Board (“NLRB” or “Board”) has become the center of national media attention. In the cases involving social media, the Board simply applies well-established, decades-old legal principles. Yet, employers, business groups, and the media have portrayed the Board as deviating from long-standing precedent, overstepping its role in regulating employment, and misunderstanding the impact of social media. However, no federal Circuit Court, to which Board decisions are appealed, has yet denied enforcement of a Board decision in a case involving social media.

While other scholars have contributed to the buzz surrounding the Board’s decisions by arguing that the Board has been incorrect to apply its precedent to social media because social media differs from prior technology, this Article argues that the Board has properly used its wealth of expertise gained from many decades of enforcing labor management relations to extend its precedent in a flexible manner to this new technology. This Article first summarizes the Board’s decisions and guidance about employees’ use of social media and employer policies regulating the use of social media. It then discusses four simple clarifications that the Board should make in future decisions in order to make its regulation easier for employers and employees to understand and follow. First, the Board should clarify that any time more than one employee is involved in a social media discussion, the employees act concertedly. Second, the Board should clarify that employees act for mutual aid and protection when they discuss working conditions, whether or not they explicitly focus on improving those conditions. Third, the Board should clarify how it will determine when employees engaged in otherwise protected concerted activity lose the protection of the National Labor Relations Act due to the egregious nature of their social media use. Finally, the Board should clarify whether provision-specific disclaimers providing concrete examples of what constitutes protected concerted activity will be effective to render a social media policy legal. These clarifications will enhance the likelihood of continued enforcement of Board decisions involving social media by the Circuit Courts. Moreover, these clarifications have not been discussed in articles written by other scholars and, thus, contribute to the growing literature on this topic.

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November 19, 2019