Did you know, according to the NLRB, the National Labor Relations Board, social media, such as certain Facebook conversations, are “protected concerted activity?” In other words, your online conversations about your job workplace are protected to a certain point. Facebook, LinkedIn, and Twitter are just a few of the top social media websites utilized by employers and employees today.
As quoted from the NLRB’s website, “The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.” This federal agency is responsible for framing the rights of workers in the workplace, investigating charges or allegations, facilitating settlements, deciding cases, and enforcing order. The NLRB was created by Congress on July 5, 1935 to help enforce the Wagner Act of 1935, which “enforces the national labor policy of assuring free choice and encourages collective bargaining as a means of maintaining industrial peace.” According to the NLRB’s compiled data for 2010, “26,000 cases were received by the Board through its Regional, Sub-regional, and Resident Offices each year.” It is interesting to note that 32.7% of those cases were settles leaving nearly 62% cases either withdrawn, still under investigation, or dismissed all together because of lack of evidence.
The first time social media and the labor laws went to battle was on October 27, 2010 over an ambulance company from Connecticut. The employer had terminated the employee for posting criticizing comments about her supervisor on Facebook. The posting, by the employee, brought light to not having a union representative present at the time of customer service investigation. Postings from fellow co-workers lead to references directed at the supervisor as “psychiatric patient” and a “scumbag.” The NLRB found that the employee’s Facebook postings constituted as protected activity under the NLR because they discussed work-related working conditions. This case was ultimately settled per an agreement with the employer to update their social media conduct policy.
Since that case in 2010, the NLRB has been busy with over 100 separate cases all dealing with social media related terminations. Lafe E. Solomon, with the NLRB Office of Public Affairs, released a 24-page memorandum, including 14 separate investigations, on August 18, 2011 “involving the use of social media and employers’ social and general media policies.” This was released in hopes that it would assist “human resource professionals” and “encourage compliance with the NLRA Act.”
According to the Law Office of English, Lucas, Priest & Owsley, LLP, “employers can violate the NLRB if they discipline employees for engaging in online conversations with co-workers on their personal social media pages about issues relating to their wages, terms, and conditions of work. But, employers still have the right to discipline employees who use social media to reveal confidential information about the company or who use social media to unlawfully harass co-workers on the basis of their race, sex, religion, or other protected characteristics.”
A CareerBuilder survey indicates that, “35% of employers use social media to promote their company to find new business or recruit and research potential employees.” Workers are turning to social media websites not only for personal reasons, but for professional reasons as well. They are looking for job listings, information about companies, and employee testimonials. Workers also use social media networks to share negative opinions ranging from company communication failures to workplace conditions.
These findings from the NLRB can benefit either the employer or the employee. "Both parties need to be careful with what they do online," said Mark Neuberger, a management-side labor lawyer with Foley & Lardner in Miami. "There's no direct easy answer to what's allowable."
According to the Cindy Krischer Goodman with the Vancouver Sun, “what emerges from this report, the first of its kind, is that social media policies aren't protecting companies the way many of them had expected.”
According to the NLRA, the National Labor Relations Act, Section 7 is the section most used in these social media cases:
Sec. 7. RIGHTS OF EMPLOYEES
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].
The NLRB’s rulings on the bounds of social media can be equally confusing. They allegedly take vague or unclear language inside policies and produce embarrassing comments about a company’s reaction to an employee’s communication. In a Technology and Marketing Law Blog, Eric Goldman says, “It puts the employer in a pretty awkward position to have to tolerate employee comments about workplace issues if they are taking place in front of customers or clients. The issue of customer or client perception did not seem like it was of any significant concern to the NLRB.”
What exactly should employers be doing right now in reaction to the NLRB’s rulings over social media use? Companies and Human Resource Directors should be evaluating whether or not their policies need to be adjusted or reconfigured. According to an article by Patrick H. Hicks and Deborah L. Wesbrook, “A good middle course would involve adding language to existing social media policies explaining that the policy will not be construed or applied in a manner that interferes with employees’ rights under Section 7 of the NLRA.” They also note in their article that employers should consult their counsel before moving forward with any social-media termination decisions.
