NLRB & The Shift of “Protected” Employee Conduct into Social Media

By: Ryan McGinty

In the interest of the U.S. economy, the National Labor Relations Act (“NLRA”) was enacted by Congress over half a century ago with a mission to protect the rights of employers and employees.[1] Enforced by the National Labor Relations Board (“NLRB”), an independent federal agency,[2] section 7 of the Act empowers the NLRB to monitor union activity and provide that employee rights are protected.[3]

Increased technology and the realm of social media, a continuously moving target for the NLRB, have created a shift in protected concerted activity as union membership continues on a rapid decline.[4] As early as 2010, the NLRB began receiving charges related to employer social media policies and to specific instances of discipline for Facebook postings.[5] After investigations, the agency found reasonable cause to believe that some policies covering social media and disciplinary actions violated federal labor law while others did not.[6]

As it relates to union activity under section 7, it has already been ruled that employer email accounts are an acceptable platform to communicate about union-related activity and that union petitions can receive signatures electronically.[7] The social media issue differs though in that there are no past judgments or guidelines that have marked a legitimate line in terms of what is “protected” on social media. Results from the courts have been mixed relating to posts on personal social media accounts.[8] Who knows, maybe one day soon, just like with email accounts, employers and employees will effectively have personal and work accounts on all social media pages.

In the first 2011 report by acting General Counsel, Lafe Solomon, the issue at hand was addressed.[9] He found that in four cases involving Facebook posts, employees were engaging in “protected concerted activity” because they were discussing terms and conditions of employment protected under the benefits of unionizing.[10]  He moved on to find examples of cases involving Facebook and Twitter posts that were deemed unprotected speech.[11]  Another case suggested that a union acted unlawfully when it posted interviews with potential clients about their immigration status onto the public YouTube page and the Local Union’s Facebook account.[12]

In a second report which addressed employer policies, Lafe Solomon came to two main points concerning the NLRB and social media:

1. “Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees”

1. “An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees”[13]

 

In a more recent case, an employee’s activity on social media did not lose protection under section 7 of the NLRA for obscenities because it was ruled that the posts were made in an attempt to seek and provide mutual support to ignite group action preventing the disparagement of products and services. [14] In fact, in this case, the employer’s “Internet/Blogging” rule had violated section 8(a)(1) of NLRA[15] which makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in exercising their section 7 rights.[16]

As the issue continues to move forward, we might see a divided NLRB require that, instead of amending current rules, a whole new set of rules under the NLRA be created to adjust for a social media influenced twenty-first century.

 

[1] 29 U.S.C. §§ 151-169.

[2] Id.

[3] 29 U.S.C § 157.

[4] Hot Topics in Employment Law: What to Worry About in 2016, ERC (April 12, 2016) https://www.yourerc.com/blog/post/hot-topics-in-employment-law-what-to-worry-about-in-2016.aspx

[5] The NLRB and Social Media, Nat’l Lab. Rel. Board, available at https://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media (last visited Oct. 11, 2016).

[6] Id.

[7] Hot Topics in Employment Law: What to Worry About in 2016, supra note 4.

[8]Id.

[9] The NLRB and Social Media, supra note 5.

[10]Id.

[11] Id.

[12] Id.

[13] Id.

[14] Three D, LLC v. NLRB, 629 F App’x 33 (2d Cir 2015).

[15] Id.

[16] 29 U.S.C. § 157, 158 (a)(1).