Two recent memorandums from the National Labor Relations Board suggest that laws related to employee rights such as collective bargaining also have implications in regard to the use of social media by employees.
The National Labor Relations Act covers employee rights to organize a union; bargain collectively; strike and picket; raise work-related complaints; form, join or assist with a union; or discuss wages and benefits with co-workers. The National Labor Relations Board is the agency tasked with preventing and resolving unfair labor practices by unions and private sector employers, regardless of whether the businesses are unionized.
Among the issues that come into play are whether workers may be stopped, disciplined or terminated for posting negative comments about their employers on social media platforms. Guidelines are beginning to materialize from NLRB citing case examples and interpretations of the law.
Section 8 of the NLRA states that it is an unfair labor practice for a company “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the act. Section 7 gives staff of both union and nonunion workplaces the right to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Corporations must determine whether employees were engaged in such activities to further mutual aid or protection of co-workers when posting negative information on social media sites.
An activity is concerted when a laborer acts “with or on the authority of other employees and not solely by and on behalf of the employee himself.” The definition of concerted activity “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action.” If it is determined that there was a concerted activity, the activity would be protected if it generally refers to or implicates the terms and conditions of the workplace. However, posts “are generally not protected if they are mere gripes not made in relation to group activity among employees,” according to the memos.
The NLRB cited case examples of protected concerted activity. Among them, an associate initiated a Facebook discussion because she was transferred to a less lucrative position. Co-workers responded, some echoed her frustrations, and one suggested filing a class-action lawsuit. Another case involved an employer that illegally terminated two staff members and disciplined two others for complaining on Facebook about their supervisor, the quality of their supervision and an individual selected for promotion. It should be noted, however, that the NLRA does not cover supervisors, so they could be terminated in these scenarios.
The memorandums also offered examples of when it is acceptable to discipline or terminate employees in relation to social media posts.
A case example of a lawful discharge was the termination of a team member for expressing an “individual gripe” on Facebook due to an interaction with a supervisor. The NLRB has clarified that an associate does not engage in protected concerted activity if there is no intent to start or encourage co-workers to engage in group action, regardless of whether co-workers did respond to or participate in a particular chat.
Even if the activity is protected, the worker may lose the act’s protection if a line is crossed and statements are reckless or maliciously untrue.
Businesses must use caution and weigh the facts against the law and emerging cases when dealing with staff and social media.
Lynne Haggerman, M.S., is president/owner of Lynne Haggerman & Associates LLC, a Springfield firm specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.[[In-content Ad]]
