The NLRB Is Watching Your Social Media Policy Whether You Have a Union or Not

0

Rate this Column: (4.8 Stars | 4 Votes)   Thanks for your rating!

Although you may not realize it, the National Labor Relations Board (NLRB), which is usually thought of as protecting the rights of union workers in the U.S., also has the ability to reach into non-unionized employee relations.  Most recently, the NLRB has been scrutinizing company Social Media Policies and routinely finding that they violate the National Labor Relations Act (NLRA) section 7. 

That section provides protections for all U.S. employees, without regard to whether they are currently members of unions, or whether those activities are directly related to union activity.   It provides that employees “shall have the right to . . . engage in other concerted activities for the purpose of . . . other mutual aid or protection.” (29 U.S.C. § 157.)  When an employer attempts to stifle employee speech in whatever forum, the concern has always been whether those restrictions would run afoul of this section of the NLRA.

Before the social media age, the concern often focused on employers’ prohibitions against employees discussing salaries amongst themselves.  Employers would have policies saying that there are many reasons why salaries are set the way they are, and such decisions are at the company’s discretion, so don’t discuss your compensation with your co-workers.  However, employee discussions about their compensation were routinely found by the NLRB to be concerted (meaning “performed together or in cooperation”) activities having the purpose of “mutual aid” (in other words – employees discussing salaries to see if they were being under paid).  Therefore, policies that prohibited such discussions violated the NLRA—whether the employer had a unionized workforce or not.

One employee complaining that his or her salary is too low is not engaging in concerted activity.  However, one employee complaining that “our” salaries are too low—or several employees who determined amongst them that their salaries are too low—are engaging in concerted activity protected by the NLRA.

In this electronic age, employee conversations about the terms and conditions of employment go far beyond discussions across cubicle walls.  Employees set up Facebook pages expressly to gripe about their conditions at work.  Employees in distant offices of the same company can compare benefits and working conditions.  Because of the NLRA’s protections, however, Employers need to take care that their Social Media policies, which regulate employee online activities and communications, don’t now run afoul of the NLRA.

While one might argue that the NLRB is overreaching and is improperly subjecting companies and managers to ridicule and even potential defamation, one needs to keep in mind the era in which the NLRB “grew up” and the labor/management and employee relations that existed at that time.  It is possible that the mechanisms of the NLRA no longer align with a modern workplace—but that’s something to be considered by Congress.  In the meanwhile, employers should review their Social Medial Policies (and other policies restricting employee speech) to make sure that they permit employees to communicate with each other about their terms and conditions of employment, and that employees are not disciplined or terminated for having such conversations.  Otherwise, the company may well feel the wrath of the NLRB.  

Contributor:   Devora Lindeman

Devora L. Lindeman is a Partner with Greenwald Doherty LLP, a labor and employment law firm exclusively representing management in relationships with employees and unions, with offices in New York, New Jersey, and Connecticut. She provides management training to employers and employer associations on these and other topics. Lindeman joined Greenwald Doherty in 2007 with many years experience in management-side labor and employment law. Previously an attorney at Proskauer Rose, LLP, she divided her practice between human resources consultation and court and agency litigation. Lindeman spent a number of years at a labor and employment boutique firm prior to that. Since she has a business background, she understands employers’ needs and works with them to creatively solve employee issues. Much of her practice involves counseling clients on issues that arise daily, such as responding to workplace discrimination or harassment complaints, dealing with wage and hour compliance issues, accommodating individuals with disabilities, dealing with leave laws such as the Family and Medical Leave Act and routinely addressing the other myriad of situations that arise on a daily basis when one has employees. She also reviews and drafts employee policies and handbooks and assists employers with employee agreements, such as non-compete and confidentiality agreements, as well as those involved with reductions in force. Lindeman lectures to trade and business associations on various employment law topics.

Lindeman received her undergraduate degree from Sarah Lawrence College and graduated from Rutgers School of Law—Newark with Highest Honors. During law school, she served as the Notes & Comments Editor for the Rutgers Law Review. On graduation, she was inducted into both the Order of the Coif and the Order of the Barrister. She then clerked for the Honorable Stanley R. Chesler, U.S.M.J., in the District of New Jersey. Lindeman has practiced management-side labor and employment law ever since. She is admitted to practice in New York and New Jersey.

You Should Check Out:

Creating a Paper Trail Supports Discipline and Discharge Decisions

When Your Employee Won't Sign

How to Change the Game