Today’s Wall Street Journal discussed the increased scrutiny that the National Labor Relations Board (“NLRB”) has continued to place on second-guessing employers’ terminations of employees who have bad-mouthed their employers and managers through social media outlets like Facebook or Twitter. See Workers Claim Right to Rant on Facebook, by Melanie Trottman.
Briefly, under Section 7 of the National Labor Relations Act (NLRA), employees are guaranteed “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” 29 USC 157.
It is this last provision that the NLRB and employees have latched onto as a means to protect online rants. It is important for both employers and employees to understand, however, that Section 7 of the NLRA does not protect garden variety gripes – complaints must relate to the rights under this provision.
The WSJ’s article provides a great overview of the difficulties employers and employees face when it comes to parsing out what social media postings are or are not protected by the NLRA.
Recommendations for Addressing Social Media & Labor Rights
The best course of action for employers contemplating disciplining or firing an employee for a Facebook posting or related social media use is to examine the issue of protected concerted activity under the National Labor Relations with their labor and employment counsel to avoid ending up in the NLRB’s cross hairs. Two additional recommendations to consider:
- For more information about the NLRB’s view of social media employee related discripline, employers and employees should review the NLRB’s report detailing the outcome of its investigations into social media policies and firings in relation to the NLRA and the U.S. Chamber of Commerce’s comprehensive Report, A Survey of Social Media Issues Before the NLRB.
- Workplace Technology Restrictions: Employees generally do not have a statutory right to use an employer’s IT infrastructure and e-mail system for Section 7 purposes. Thus, an employer’s technology policy prohibiting employee use of the system for “non-job-related solicitations” will generally not violate the NLRA. It is important, however, that technology restrictions for non-solicitation and non-distribution rules are uniformly applied. This is because it can be argued that an employer violates the NLRA if its policy discriminates along Section 7 lines. In other words, an employer cannot permit employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by anti-union employees but not by pro-union employees.
For additional information on Social Media and the challenges and opportunities it presents for employers and employees, contact Jason Shinn.