For example, if an employee complains about the company’s salary structure on Facebook and other employees join in on the Facebook conversation, that social media activity may be protected concerted activity under section 7 of the NLRA.

The Board has analyzed several social media policies, striking down many as overbroad in that they supposedly restrict the right of employees to engage in protected concerted activities. The NLRB’s guidance in this area, and the implications of that guidance, are discussed below.

NLRB and Court Decisions

In several decisions over the last decade, the NLRB has weighed in on the legality of social media policies.

In 2016, in Cy-Fair Volunteer Fire Department, the Board found that various provisions in Cy-Fair’s Handbook and Social Networking Guideline violated the NLRA because the language could lead employees to reasonably believe that they’re prohibited from organizing or engaging in concerted activity. The Board stated that employees could reasonably believe that they, or a union, were not permitted to seek support from other employees or publicize a dispute with the employer by using the employer’s name or logo on their clothing or literature.1

In another 2016 decision, the Board found that Chipotle’s social media policy violated the NLRA despite a disclaimer in the policy that said that the policy does not restrict activity protected under the NLRA. Even though the policy violated the NLRA, the Board held that Chipotle didn’t violate the NLRA by ordering an employee to remove tweets that violated the policy because the tweets were an individual complaint, not protected concerted activity.2 If this were decided today, employers could expect this decision to go the other way.

• Whether an employee’s social media activity is considered a protected concerted activity may depend on the specific social media platform used (i.e., Facebook, Twitter, etc.) and whether or not others can engage with/respond to the post.

In Triple Play Sports Bar and Grille, the Board concluded that an employer’s Internet/blogging policy which warned that “engaging in inappropriate discussions about the company, management, and/or coworkers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment” was overly broad and unlawfully chilled employees in the exercise of their section 7 rights.3 The Board held that an employee would reasonably construe a prohibition on “inappropriate discussions about the company, management, and/or co-workers” to prohibit section 7 activity.

Similarly, in Costco Wholesale Corp., the Board held that an employer violated section 8(a)(1) by “maintaining a rule prohibiting employees from electronically posting statements that ‘damage the company... or damage any person’s reputation.’” The Board reasoned that the rule clearly prohibited “concerted communications protesting the Respondent’s treatment of its employees.”4

In New York Party Shuttle, the Board held that the employer “violat[ed] section 8(a)(3) and (1) of the Act when it failed to give [an employee] any tour guide assignments after he publicized his union organizational activities and criticized the Respondent’s employment practices in similar email and Facebook postings to third parties.”5 The Board reasoned that the posting and email were continuations of the employee’s prior union activities, of which the employer was aware.

The Board has not found that all terminations or discipline issued as a consequence of social media postings violate the Act. In Karl Knauz Motors, an employee was terminated after posting comments and photos on Facebook regarding two incidents: (1) an accident with a Land Rover where the son of a customer drove the car into a pond; and (2) a promotion event at which the employer served food and drinks to customers. The Board held that the termination was lawful because the employee had been terminated for comments relating to the Land Rover incident, comments that did not constitute protected activity.6

In Richmond District Neighborhood Center, the Board held that a Facebook conversation between two employees was not protected because the exchange contained numerous statements advocating insubordination. Two employees of a youth center exchanged messages regarding their plans to stop performing their duties, stop requesting the required permission for youth activities and to, instead, just “play music loud, get artists to come in and teach the kids how to graffiti up the walls.” The Board found that the employer did not violate the NLRA by rescinding offers to rehire the employees because of the egregious nature of the material they posted.7

The Board’s remedies for social media conduct violating the Act are not unlimited. For example, on October 25, 2024, in Tesla, Inc., the Fifth Circuit Court of Appeals en banc vacated a Board remedy ordering CEO Elon Musk to delete his social media post stating Tesla employees would lose stock options if they voted in a union because, interpreting federal precedent, deletion of speech violates the First Amendment and is a remedy solely received for communications that do not constitute speech, such as the publication of obscene or perjurious materials.8 The court remanded the case to the Board to determine a new remedy that would pass judicial review.

• Given how murky waters can be for employers under this guidance, employers who utilize electronic monitoring equipment of any kind should speak with experienced legal counsel.

1. Cy-Fair Volunteer Fire Department and Robert Berleth, et al., 364 NLRB 551 (2016)