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The National Labor Relations Board’s Division of Advice released on June 14, 2018, several memoranda providing guidance to regional NLRB offices on deciding specific cases. While these memoranda are from resolved cases, the NLRB will provide them to the public from time to time in order to provide guidance and some insight in to the division’s thought process and interpretations.

Most notable was the NLRB’s stance on a situation in which an employee turned to social media to rant about neglect of a client by another employee, rather than make a neglect complaint with the company.  While the company was not named in the social media post, some employees commented on the post and the company inevitably found out about it. After speaking with the employee, the company terminated them for violating the company’s social media and resident abuse policies.  In the memo, the head of the NLRB’s Division of Advice recommended that the unlawful termination allegations against the employer be dismissed.  The memo went on to state that the employee would have been fired absent the social media post based on her failure to report alleged client misconduct in violation of the employer’s resident abuse policy.


While the NLRB’s advice memo did not discuss in detail whether the employee’s social media post would have been a protected concerted activity that would not, by itself, justify termination, the memo does present a number of considerations for employers when drafting policies. In this time of technology, it is imperative employers have social media policies for employees that are kept up to date and modified as technology advances.  Employers should also make sure they have adequately trained employees on their social media policy and the expectations for each employee.  Although many employers are not trolling the internet to see if their employees complained about them, it is important the policy is enforced if a violation is brought to the employer’s attention. 

If you would like an HR professional to review your current social media policy, draft a policy for you or discuss ways to avoid being the subject of a NLRB advice memorandum, please contact Thompson Coe at (651) 389-5000 or  You can also find helpful information and resources regarding this topic and much more at

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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