NLRB And Social Media: Not Your Grandpa’s Labor Board
Guest post by: Lisa Caldemeyer
In Grandpa’s day, twitter meant talkative and Facebook could have been mistaken for a photo album. Today, the same “old” agencies must enforce the same “old” laws in the midst of new technology. The National Labor Relations Act (“NLRA”) which is enforced by the National Labor Relations Board (“NLRB”), in addition to other things, protects both union and non-union employees who engage in protected concerted activity. This means that employees who legally act together to improve their working situation are protected from adverse action by their employer (i.e. termination). Employers have become increasingly aware of the positive and negative impact of employees using social media. To prevent employees from badmouthing the company, many employers have social media policies that prohibit employees from, for example, criticizing members of management via Twitter, Facebook, or any other social media network. Most social media policies also state that any employee who violates the policy may face discipline or termination.
But the NLRB has recently stepped into the mix. In late October, an NLRB regional office issued a complaint against a health care employer alleging that the employer illegally terminated an employee for complaining about her supervisor with other employees via posts on her Facebook page. Earlier this month, another regional NLRB office has threatened to file a complaint against Thomson Reuters for disciplining a reporter who posted a complaint about her working conditions on Twitter. Both employers had a social media policy that prohibited these kind of disparaging posts, but the NLRB says that enforcement of those policies in these situations would violate the NLRA. Neither of these cases has been litigated, so it’s not clear how the courts will rule. Until then, employers (even employers who are grandpas) should be careful about disciplining employees for disparaging posts.