Although you probably do not have a union, Mark Pearce, the National Labor Relations Board (“NLRB”) Chairman, recently ruled that federal law has long protected the rights of employees to discuss work-related matters, as “protected concerted activity”, i.e. workers can discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook. In addition to ordering the reinstatement of various workers employed by giants such as General Motors, Target, and Costco, the federal agency has pushed such companies to reinstatement workers fired from their posts on social networks, in a series of recent rulings and advisories.
“Many view social media as the new water cooler” said Pearce. “All we’re doing is applying traditional rules to a new technology”.
The NLRB’s rulings, which are applicable to virtually all private sector employees, are telling you that bans on “disrespectful” comments of you, the employer, if those policies can be construed to discharge workers from exercising their right to communicate with one another with the aim of improving wages, benefits or working conditions.
The NLRB’s decisions rest upon whether the complaining party was engaged in “concerted activity” (egged on behalf of themselves and others) for “mutual aid” (clearly protected by the NLRB) or “bitching” (my words). A lone wolf engaged in personal venting, not the “concerted activity” aimed at improving wages and working conditions protected by federal law, is not protected by the federal agency.
Like it or not, NLRB officials say they are merely adopting the provisions of the NLRB, enacted in 1935, to the 21st century. The Board’s rulings, which apply to virtually all private sector employers, are telling employers that it is illegal to adopt overly broad social media policies, such as those that forbid “disrespectful” posts which criticize the company. The Board will find them illegal if such a policy discourages workers from exercising their right to communicate with one another with the aim of improving terms and conditions of employment. While the United States Chamber of Commerce criticizes the Board for using new legal themes to expand it’s power in the workplace (such as the Northwestern athletics case), the Board is proving itself relevant – or at least to be dealt with – in an effort to remain relevant as private sector unions watch their size and power dwindle.
Bottom line, you must craft a social media polity that is specific on what you can prohibit, i.e. tell your employees not to disclose trade secrets, product introduction dates, or private health details, among other legitimate business concerns.
Article by Loren K. Allison, attorney at law
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