Many employers who do not deal with unions on a daily basis are blissfully unaware that they can nonetheless find themselves in the crosshairs of the National Labor Relations Board for disciplining their employees. The most common way a nonunion employer violates the National Labor Relations Act is by disciplining employees for engaging in "protected concerted activity".
The NLRB's Office of General Counsel recently issued a lengthy memorandum summarizing its activities with respect to employees engaging in protected concerted activity using social media over the last year. The report is worth reading because it gives some insight into the Board's application of well-established precedent to a new and rapidly expanding medium--Internet-based social networking platforms such as Facebook, MySpace, and YouTube.
Most of the reported cases involve employees posting derogatory or negative comments about their working conditions on Facebook or other public access social media sites and then being disciplined for the posting by their employers. A couple of lessons from the NLRB case files:
1. The NLRB's reach into nonunion companies is expanding dramatically as a result of its focus on employer discipline for social media use. In fact, the Board is applying its standard rules -- that prohibit disciplining employees for discussing their terms and conditions of work with other employees -- to a new and vastly more expansive arena. What most of us would consider to be typical employee carping, which used to take place with a small group around the water cooler or coffee pot and simply did not last long enough to come to the attention of management, now makes its way out onto the permanent record of the Internet. Just as importantly, the involvement of other coworkers also becomes a matter of permanent record. When an employer responds to employee complaints about working conditions, business processes, or other conditions of work by disciplining those involved in the discussion, it's almost always going to run afoul of the NLRA.
2. Employers who try to protect themselves from Internet defamation by adopting broad policies prohibiting their employees from saying anything derogatory in their Internet postings are going to draw the wrath of the Board as well for creating overly broad, illegal work rules. Many of the cases cited in the outline are the result of the Board targeting a specific company policy containing broad or poorly defined prohibitions on social media comments.
3. Employers may, without fear of federal sanctions, discipline employees who post inappropriate or offensive matter unrelated to terms and conditions of employment or that do not involve or seek to involve other employees.
This NLRB is proving itself to be far more employee than business friendly. Smart management will review these cases and modify its policies and behavior so that it does not open the door to federal inquiry into its employment practices.