Court Ruling Raises More Questions About NLRB’s Recent Social Media Decisions

I have discussed the National Labor Relations Board’s recent social media decisions here and here.  To summarize, in the past year or so the NLRB has made it very clear that, in its view, all employees (union or not) have a right to discuss the terms and conditions of their employment on social media sites such as Facebook and Twitter – and company social media policies that seem to infringe that right are forbidden.  There has been a lot of confusion over where the NLRB draws the line between protected discussion of terms and conditions of employment and simply non-productive venting that is not protected – with the NLRB’s several “Guidances” shedding very little light.

Now we have another source of confusion to add to the mix.  A federal appeals court has ruled that three of the five current members of the NLRB were improperly appointed, resulting in the specific NLRB decision that was appealed being reversed because the remaining members of the NLRB didn’t have the necessary quorum to issue a ruling and raising concern that all other decisions by the current NLRB are also subject to reversal for the same reason.  Since parts of this court’s decision are in conflict with decisions by two other federal appeals courts, the decision is likely to be appealed to the United States Supreme Court.  That process will likely take a couple of years.  Meanwhile, the current NLRB is not backing down, instead maintaining that its members were properly appointed and have the power to continue to act.  So – in addition to concerns about the murky guidance described above, we now have the concern over whether any decision announced by the current NLRB can or should be relied on.

Clear as mud.  Stay tuned for more developments.

The analysis set forth in this article is provided for general understanding only and should not be considered legal adviceEmployers and employees alike should seek the advice of counsel with respect to specific concerns regarding any social media policy.

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