The NLRB Facebook Cases – What Was Your Employment Lawyer Thinking?


Today's post is my 100th!


When I was in law school I had a professor who was positively gaga about policy. It was her belief that  students who understood what policy objective the courts and legislatures were trying to achieve would have a better understanding of and rememberence of any given law. It would also help those future lawyers, when confronted with facts and situations that had not been previously addressed, analyze those facts within the existing law and come to some type of reasonable conclusion (especially on her exam ;-)).

I used that technique to a large degree myself when I was a law professor, and I found it an invaluable way to keep sight of a law and its potential impact when faced with an endless series of “but, what if  . . .?” questions from my students.

So it puzzles me a bit that there is such a fuss about the NLRB and the so-called “Facebook cases”.  After all, the Wagner Act, or NLRA, has been the law for 75 years. Not exactly a new, untried law. Under the NLRA, all workers have the right to engage in concerted activity for the purpose of mutual aid and protection, and, if you think about it, the workers of today have always had that right. The policy objective underneath that act is to protect and encourage the formation of unions, which takes a whole lot of communication between employees about their common grievances.

So why would any employment lawyer worth his or her hefty fee advise a company to write a policy that forbids them from discussing work on social media sites such as Facebook? Or draft  a policy that forbids an employee from making a “negative comment” about their employer?

The many lawyers who advised their clients to adopt such policies, or even suggested outright social media bans – and based on these cases there were plenty – forgot the policy behind the NLRA. They forgot that this law was intended to protect certain kinds of communication among employees in order to keep them safe from those activities that might lead to unionization.

Not only did the lawyers forget the policy behind the law, they were so concerned about risk avoidance and so frightened of social media that they didn’t take the time to understand that it constituted an essential shift in the way that Americans, including workers, were communicating with each other.

Maybe the lawyers who advised employers to adopt these overly broad policies just simply forgot about the existence of the NLRA and its commitment to helping workers discuss their joint concerns about wages, hours, and working conditions.

Whatever the reason for the lawyer’s failing, it was not just a situation of “the rapidly changing law”, as many want you to believe. So if you have an overly broad social media policy suggested by a lawyer, that you are now struggling to change in light of the NLRB’s recent activity, you may want to throw out the lawyer as well as the policy.