Non-Union Employers Beware!  The NLRB is Coming After You due to your Social Media Policy

By: Melissa Fleischer, Esq.

As a non-union employer, you probably have barely heard of the NLRB no less think that they have anything to do with your organization.  However, this could not be further from the truth.  The NLRB pursuant to the National Labor Relations Act (“NLRA”) has jurisdiction over all workplaces.  Lately, the NLRB has taken the position that numerous non-union businesses such as car dealerships, restaurants, retail stores such as Wal-Mart and business corporations have violated the NLRA. 

What does the NLRB allege that these organizations have done wrong?  They have fired their employees for posts the employees have made on Facebook or other social media and they have also created a Social Media Policy that allegedly violates the NLRA.  Basically, the NLRA prohibits any employer, union or non-union from interfering with an employee’s rights to engage in protected concerted activity under Section 7 of the NLRA. 

What is protected concerted activity?  Well the NLRB defines concerted activity as  “when an employee acts with or on authority of other employees and not solely by and on behalf of the employee himself.”  In addition, it is concerted if it covers truly group complaints and/or contemplates future group activity. So even a  lone employee’s act of posting his photos and his commentary on his Facebook page at home on his own computer can in some circumstances constitute “concerted activity”. 

It is protected concerted activity if it addresses a subject that is protected by the NLRA such as the employee’s terms and conditions of employment.  So if an employee is criicising their manager or discussing their wages or how they were not given a bonus and if they are discussing this with their co-worker “Facebook friends” or on behalf of other workers, it would constitute protected concerted activity.  If you were to terminate an employee because of a posting that the NLRB considered to be protected concerted activity you could be accused of violating the NLRB and the NLRB could file a charge against your organization.

In addition, your social media policy can also be alleged to violate the NLRA by being overbroad and prohibiting conduct that is protected by the NLRA even though you are a non-union employer.  So some tips for drafting your Social Media Policy is to make sure to define all your terms and avoid terms such as “inappropriate” unless you define what inappropriate is.  Also, have a clear disclaimer that nothing in your policy is meant to prohibit conduct that is protected by any federal or state laws including the NLRA.

So remember that just because you are a non-union employer does not mean that you do not have to be concerned with the NLRB.  Keep your eyes and ears on this subject because it appears that the NLRB will be actively enforcing the NLRA in the coming year.

For more information on this subject, feel free to contact us at 914-417-1715 or by e-mail or attend our upcoming webinar on this subject on February 1, 2012 at 1:00p.m.  Sign-Up Today!

© HR Learning Center 2012