THE NLRB AND FACEBOOK POSTINGS
Alfred T. DeMaria
As previous firm notices have publicized, the National Labor Relations Board (NLRB) has issued several complaints against companies that have disciplined employees for posting Facebook messages that were uncomplimentary to the employer or its managers. Both union and union free employers need to identify the issues involved in the application of labor law to employee use of social media.
The issues investigated by the NLRB are not limited to union facilities. Private, non-union employers are also subject to the jurisdiction of the NLRB, and must also comply with Board rulings on this subject.
Generally, it has been the overbroad nature of the employer's policies that apparently have been problematic for the NLRB. Employers need to strike the proper balance between what is an appropriate remark and what is unwelcome when establishing a policy.
The NLRB will still look beyond the policy itself at the context and totality of circumstances surrounding any discipline, and the precise nature of the employee's individual complaint. It remains critical for all employers to ensure that they also have the appropriate monitoring policies and practices, as the NLRB will also consider the manner in which a company learned about any social media activity that prompted an adverse decision. There is a big difference between public postings and surreptitious discovery.
Finally, there is no true distinction between social media activity and statements or conduct by employees through means other than social media. Yet, companies appear to be more sensitive to (and, therefore, more likely to react more quickly to) unwelcome social media activity. Since the government now has assumed an oversight role over decisions in this area, time must be taken to analyze each situation to limit the heavy hand of the NLRB.
This Update is not intended to be legal advice, but rather is intended to inform the reader of problem areas and recent developments in labor and employment law. If legal advice is required concerning a particular matter, your attorney should be consulted.