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NLRB Issues Guidance on Social-Media Use in the Workplace
In response to the growing prevalence of social media in the workplace, the National Labor Relations Board (NLRB) has issued a report explaining when employers may discipline employees for social-media activity. The report analyzes 14 recent cases involving social-media use.
According to the National Labor Relations Act (NLRA), employers must generally allow employees to discuss the terms and conditions of their employment (wages, hours, etc.) with their co-workers without fear of discipline or termination. This is considered protected "concerted activity" because co-workers are entitled to act together for their mutual aid or protection.
The report cites four cases in which employers violated the NLRA's "concerted activities" provision. Each involved reprisals for Facebook postings by employees:
- Negative comments about a supervisor (e.g., calling him a "scumbag") who was investigating a customer complaint against an employee;
- Complaints about the employer's tax-withholding practices;
- Pictures with sarcastic and critical comments about a sales event; and
- Criticisms about the work performance of various co-workers.
The employees prevailed in all four cases because their discussions (1) involved shared employee concerns about terms and conditions of their employment; (2) were either brought to the attention of management (or the employee had a reasonable belief that it would be); and (3) was among co-workers and/or addressed them.
The report also examined two cases in which the employer's reprisals did not violate the NLRA. In both cases, the discussions were not among co-workers, and in one case the discussion did not concern terms and conditions of employment. In sum, one employee complaining alone, to a non-union outside entity about the employer is not considered an NLRA-protected activity.
There's no doubt that employers' social-media policies have caught the NLRB's attention. Accordingly, employers may need to refine their policies and procedures to conform to the NLRB's guidance and should train their employees and managers on the parameters of responsible social-media use.
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Posted by Ken Grosserode on September 26, 2011 Ken Grosserode, a Managing Legal Editor at WeComply, writes and edits the content for e-learning courseware and related compliance training resources. Earlier in his career, Ken worked for the U.S. Department of Justice after being accepted into the Attorney General's Honors Program. He later practiced law as an associate attorney at Berry, Appleman & Leiden LLP in San Francisco. Ken holds a J.D. from the University of San Francisco School of Law. |
Tags: Social-Media
