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Employee Use of Facebook to Discuss Working Conditions Considered “Protected Concerted Activity” by Regional NLRB Office
A closely watched case testing the limits of employer regulation of the social media activities of its employees has settled, offering some guidance to employers around the issue.
In October 2010, the Connecticut regional office of the National Labor Relations Board (NLRB) issued a complaint alleging that an employer unlawfully terminated the employment of an employee after she used Facebook to post negative remarks about her supervisor. The NLRB regional office alleged that the employee’s remarks constituted “protected concerted activity” under Section 7 of the National Labor Relations Act (NLRA), which applies to most employers, not just those with unionized workforces.
The NLRA protects employees’ rights to engage in protected concerted activities. The NLRB posts the following examples of protected concerted activities on its website:
a) Two or more employees addressing their employer about improving their working conditions and pay;
b) One employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;
c) Two or more employees discussing pay or other work-related issues with each other.
The NLRB regional office took the position that the employee had a right to protest her working conditions through her Facebook post. Additionally, the complaint alleged that the employer’s policies regarding the appropriate use of social media were overly broad and restricted employees from engaging in protected concerted activity.
In the settlement announced on February 7, 2011, the employer agreed to (i) revise its rules to ensure they do not restrict employees from discussing their wages, hours and working conditions with co-workers while at work, and (ii) refrain from disciplining or discharging employees engaged in protected concerted activity. Because of the regional settlement, the matter has ended before it could get to the full NLRB in Washington, D.C. for review. As a result, we do not yet have the NLRB's view on just how far employers can go when dealing with objectionable posts on social media.
What should employers do?
We believe that it is only a matter of time before the full NLRB takes a case to decide the Section 7 rights of employees when they use social media. The current Board is labor-friendly, and we expect such a case to result in a ruling that favors protecting employees when they engage in most such activities, even if it is upsetting to their employers.
In light of this new development, employers need to make sure that their social media policies do not prohibit employees from discussing their wages, hours and working conditions. However, employers can adopt and enforce policies to manage this information free-for-all and should consider the following action items:
1) Consider adopting or revising social media policies to encourage employees to use common sense when using social media and restrict, if appropriate, access to social media websites during working hours and/or at the workplace;
2) Avoid an automatic reaction to unflattering employee comments on social media to make certain that you do not violate their rights. Keep in mind, however, that the right to comment on wages, hours and working conditions (including supervisors) is not unlimited. Employees do not have license to defame or disparage their organization or management; and
3) When considering a serious morale or workplace issue via social media, evaluate whether these comments or status updates have value and can be used to help you retain, motivate and build loyalty in your workforce (i.e., don't ignore a cacophony of complaints about working conditions—you may be missing an opportunity to improve your company).
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