Blurring online

Most employers consider the National Labor Relations Board a federal entity that decides legal issues related to workplace union activities. What many employers don’t realize is the NLRB has authority over any concerted employee activities related to work conditions, union or not.

There need not be a union presence at a workplace before employees are protected under federal labor law. They can file claims with the NLRB for violation of right to address work conditions with one or more co-workers. The NLRB has been more aggressive in expanding its presence in non-unionized workplaces. It most recently addressed employers’ social media policies that could curtail employee rights to discuss (complain about) work conditions.

A current NLRB case is addressing the issue of whether liking a co-worker’s Facebook post about poor workplace conditions at a non-union employer counts as protected concerted activity under federal labor law. If so, it will further blur the line on protected activity. An employee won’t have to join a picket line or even verbalize a complaint. A click of the mouse at a location a thousand miles distant will virtually be protected activity.

The NLRB’s focus on social media illustrates its basic policy of preventing employers from limiting the rights of employees to band together. The NLRB will look closely at how sites like Facebook and Twitter can be used to organize or communicate with co-workers. The NLRB’s position is that such policies can’t be used to deter an employee’s right to workplace speech and other concerted activities both in and outside the workplace.

As a general rule, a social media policy banning employees from merely complaining about the company, for example, posting “My employer sucks,” on an unprotected Facebook page, is lawful. However, a policy that can be construed as prohibiting employees from sharing information or complaints about wages, workplace conditions, or other job-related terms will likely be considered to violate federal labor law. The NLRB has made clear that it will treat online discussions about work conditions just as it would if the words were spoken at the work site.

An employer’s social media policy must be written with clear, specific examples of the kind of activity that is prohibited, or else it runs the strong risk of being unlawful.

This article appeared in the March 27, 2014, issue of The Journal Record. It is reproduced with permission from the publisher.
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