Venting on social media? The NLRB has employees’ backs

9 Oct

Employees holding a Facebook discussion about their employer were protected by the NLRA.

Many consider the National Labor Relations Board to be the governing body in charge of protecting employee and employer rights. The National Labor Relations Act enacted by Congress in 1935 was designed to put into plain text the various safeguards that give employees the ability of collective bargaining and striking, and many of the activities commonly associated with labor unions.

However, the digital age has thrown a bit of a wrench in the straightforward statements originally contained in the 20th century legislation. Specifically, social media is difficult terrain for some employers to navigate in the way they're able to set policy that influences their employees' online behavior. The recent case involving a sports bar and grill clarified the extent to which social networks fall under the protection of the NLRA. It's a case that human resources managers should pay close attention to, especially when they're developing or redefining employee management policies.

The importance of Section 7 of the NRLA
There are portions of the NLRA that are used as a reference when discussing protected speech, collective bargaining and other important employee rights. Nonetheless, Section 7 of the NLRA contains language discusses "concerted activities" as they pertain to mutual aid or protection. Employees have the right to collaborate to improve working conditions. The case involving the sports bar saw this principle applied to social media.

A Facebook discussion as a concerted activity
Four employees of the sports bar and grill held a Facebook discussion about their wages. In particular, they spoke of how they believed they unfairly had to pay state taxes due to accounting errors on the part of the bar owners. The judge in the case ruled in favor of the employees, finding the Facebook discussion, which was held on one of the participant's personal pages, was protected under Section 7 of the NLRA. Despite some of the profane language used on the social network, it wasn't deemed to be defamatory.

As a result, two of the employees, who were fired by the employer for violating the company's online sharing policy, were able to reassume their positions within the company. In addition, the other two individuals who "liked" the comments made by their colleagues were also protected under the NRLA.

What does this mean for employers?
Law firm Seyfarth Shaw indicated employers need to first construct their employee policies regarding online conduct in full purview of the NRLA. In other words, employees must be allowed to discuss their wages, work environment and other work-related matters without fear of dismissal.

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