Many employers are now including rules about employees’ use of social media in employee handbooks. Employers often write such rules with an eye to preventing employees from posting negative comments about the employers’ business online. Since 2010, the National Labor Relations Board (NLRB) has been reprimanding employers who implement social media policies in the workplace that discourage employees from being critical of working conditions.

Section 7 of the National Labor Relations Act (NLRA) gives employees the right “to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8 of the NLRA prohibits an employer from taking any action to “interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.”

In several cases, the NLRB has ruled that employees fired for posting disparaging remarks about their workplace in violation of their employers’ social media policies were unlawfully discharged. The decisions for these cases cite overly broad social media policies in employee handbooks that run afoul of the Section 7 and Section 8 protections afforded to employees under the NLRA. Essentially, the NLRB has taken the position that employees have a right to criticize their employer’s conduct or workplace conditions on social media as long as the criticism is “concerted” (i.e. involves at least two employees).

One interesting development, however, has arisen in the case of Noel Canning v. NLRB where the D.C. Circuit Court of Appeals held that the January 2012 appointments of three NLRB members were unconstitutional. This ruling could result in the invalidation of several key NLRB decisions affirming the above social media positions. Until that is clear, however, employers should consult an attorney prior to implementing a new social media policy or discharging an employee for his or her social media activity.