Social media use is now ubiquitous. Employers are rightfully concerned about what their employees post on social media and how it might affect their bottom line. Employers have struggled to craft workplace policies that straddle the fine line of protecting their legitimate business interests and at the same time, not encroaching on employee rights under the National Labor Relations Act (NLRA). Since 2004, the fate of facially neutral workplace policies has turned on whether employees would reasonably construe the policies to prohibit Section 7 activity. In a surprise decision in late 2017, outgoing Board Chairman Miscimarra and two new Republican appointees upended this analytical framework with their decision in Boeing. This paper analyzes the NLRB caselaw in this area including the key cases that shape practitioner’s understanding of what is protected activity in the realm of employer social media policies (SMPs). This paper argues that that neither the old nor new framework under Boeing is well-suited to address the employee activity in the social media realm. Additionally, the potential negative effect of social media speech warrants a closer examination by the NLRB and Congress. This paper concludes by proposing alternative ways to analyze employer SMPs to account for the true effect of social media speech as well as guidance for drafting lawful social media policies under the Board’s new standard set forth in Boeing.
|Advisor:||Craver, Charles B.|
|School:||The George Washington University|
|School Location:||United States -- District of Columbia|
|Source:||MAI 57/05M(E), Masters Abstracts International|
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