by Josh Cline
One of the biggest misconceptions employers have is that the National Labor Relations Act (NLRA) applies only to unionized employers. As a result, employers may hear of an adverse ruling from the National Labor Relations Board (NLRB), the federal agency that issues rulings regarding the NLRA, and simply ignore it. This attitude can be dangerous because certain portions of the NLRA apply to both unionized and nonunionized employers alike. Image may be NSFW.
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Section 7 rights
The portion of the NLRA of most concern to nonunionized employers is the provision regarding “concerted activity.” Section 7 of the NLRA states that “employees shall have the right to . . . engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” On its own, this provision doesn’t sound particularly menacing. But the NLRB’s application of the law has been very broad, especially under the current administration. This broad interpretation has led to employee-friendly rulings that conflict with common employer policies. In addition, employers can’t retaliate against employees for participating in concerted activity, meaning the broad rulings have an impact on employment decisions as well.
The broadening of Section 7 rights comes at a time when technology is changing the way people communicate. What once would have been a private in-person or phone conversation is now an online posting in a public forum. The NLRB has interpreted these public posts and their replies by coworkers—often on Facebook—to be protected in the same way as more traditional, private communications.
Problematic social media policies
Because of rapid changes in technology, many employers have tried to avoid potential problems by creating social media policies. These policies may apply inside and outside the workplace or may regulate the use of company-owned equipment. The NLRB has taken aim at these types of policies.
The NLRB has frequently take the position that social media policies that could be interpreted by employees as barring discussions about the terms and conditions of employment violate Section 7 of the NRLA and must be revised. As a result, the Board has recently required employers to allow employees to use company e-mail systems as a forum for these protected discussions. In other words, policies created to eliminate potential problems are—at least in the eyes of the NLRB—problems themselves.
But not all NLRB rulings relating to social media have been unfavorable to employers. For example, in Richmond District Neighborhood Center, two employees had been given an offer to work another year at a teen center that provided after-school and summer activities to high-school students. After receiving the offer, the two employees engaged in a public Facebook conversation regarding their jobs. The exchange can be described as a profanity-laced, slang-filled antimanagement tirade. The NLRB recognized that sometimes even concerted activity can be “so egregious” that it is no longer protected by Section 7. The Board noted that the posts contained “numerous statements advocating insubordination.” It further noted the employees were “unfit for service.”
Bottom line
Unfortunately, even employer-friendly rulings from the NLRB can have a not-so-silver lining. This case presents a few important takeaways for management to consider. First, the NLRB reaffirmed its position that Facebook posts between employees are concerted activity if they relate to terms and conditions of employment.
Second, the NLRB didn’t rely on the profanity or the disparaging characterizations of administrative or managerial personnel in determining that the postings fell outside of Section 7 protections. It seems to be saying that the use of profanity or disparaging comments in a public forum may not, in and of itself, be grounds for termination. The Board expects management to have thick skin with regard to concerted activity.
Getting hit with a charge from the NLRB puts employers in the unenviable position of investing time and resources to defend charges while also changing policies. The best practice to avoid this position is for all employers—not just unionized employers—to regularly review policies regulating employee conduct, particularly those regarding social media.
Image may be NSFW.
Clik here to view.
Josh Cline is an attorney with McAfee & Taft in Tulsa, Oklahoma. He may be contacted at josh.cline@mcafeetaft.com.