By: Darling Gutierrez
Due to Covid-19, unions have had to find other ways to communicate with their members and mobilize employees. Unions have turned to social media to be able to communicate easily without the limitations of having to gather in public at a membership meeting. Unions are using Facebook, Twitter, Instagram, LinkedIn and Zoom to communicate. Social media allows unions to reach more people than it could before.
In 2014, the NLRB held that workers could use their work email and other IT systems to discuss wages and other workplace issues on nonworking time. In 2019, the NLRB reestablished the right of employers to restrict, on a nondiscriminatory basis, the use of work emails and other IT systems for non-work-related purposes, including union organizing activities, overruling its previous decision from 2014. Now that unions are taking advantage of social media, this ruling will have less of an impact on union communications.
The use of social media has led to more innovative ways for unions to share information, including the use of geofencing (the creation of a virtual perimeter for a geographical location) in place of physical picketing. A radius is set around a particular address and anyone in that area will receive any ads or messages from the group who set up the advertising. This method of communication allows unions to send their message to the customers and anyone around the specific employer the union is picketing instead of gathering in large groups, which is difficult during this time.
Social media might be the solution for unions to increase membership, especially for targeting younger workers, and to grow the labor movement because unions have struggled with declining union membership. In 2020, only about 10.8% of American workers were members of unions according to the U.S. Bureau of Labor Statistics. In 1984, the union membership rate was 20.1%, almost twice as high as the current membership rate.
Social media has already helped with organizing efforts in 2016, during a Verizon strike; in 2018, during a teachers’ strike in West Virginia, Arizona and Oklahoma; and in 2020, during a SEIU Healthcare Michigan strike. Social media use by unions has proven to be useful to reach younger workers across different locations and time zones.
With the use of social media comes the concern of making sure that whatever is said online is allowed. For example, “disparaging an employer’s products isn’t protected activity under the National Labor Relations Act.” With increased social media use, employers fear employees expressing their opinions, which can be damaging to the company if they are negative. The NLRA protects the rights of employees to communicate on social media regarding work conditions, but employers are allowed to take disciplinary actions if the communications are not protected by the Act.
The NLRB has given guidance on which social media used by employees employers can regulate because the NLRA does protect some employee speech, including posts on social media. The NLRB justifies limitations on employee expression on social media because it wants to also consider the employer’s interest in protecting its reputation. The NLRB has found the prohibition of statements about the company to the public lawful, but the prohibition of statements about the company to other employees is not lawful. Social media communication allows unions to organize without employers knowing. For employers, engaging and communicating with employees through social media can help during union organizing, however, it is recommended that this be an established system before union organizing to defend the employer from unfair labor practice charges. Unions should keep learning effective ways to use social media to increase their membership and employers should become acquainted with how to use social media to reach their employees as wel
 Danielle Nichole Smith, Social Media Expands Unions’ Reach, But Pitfalls Remain, Law360 (Feb. 2, 2021) https://www.law360.com/employment-authority/labor/articles/1350737/social-media-expands-unions-reach-but-pitfalls-remain.
 NLRB, Board Restores Employer’s Right to Restrict Use of Email, Nat’l Lab. Rel. Board (Dec. 17, 2019) https://www.nlrb.gov/news-outreach/news-story/board-restores-employers-right-to-restrict-use-of-email; The Economist Intelligence Unit, Unions and the Power of Social Media, Prudential at 3 (Jan. 2019) http://tafthartley.prudentialretirement.com/_assets/documents_pdfs/taft_article6_socialmedia.pdf.
 NLRB Confirms Prohibiting Use of Company Equipment, Including Work Emails, is Lawful, Fisher Phillips (Dec. 18, 2019) https://www.fisherphillips.com/resources-alerts-nlrb-confirms–prohibiting-use-of-company.
 Smith, supra note 1.
 Sophie Thurber, Incorporating Geofencing Into Your Campaign Advertising, The Campaign Workshop (Jul. 16, 2020) https://www.thecampaignworkshop.com/blog/campaign-tactics/campaign-advertising.
 See The Economist Intelligence Unit, supra note 3 at 1, 3.
 The Economist Intelligence Unit, supra note 3 at 4.
 Zack Quaintance, Social Media Helps Public-Sector Labor Organizing Efforts, Gov’t Tech. (Mar. 16, 2018) https://www.govtech.com/gov-experience/Social-Media-Helps-Public-Sector-Labor-Organizing-Efforts.html.
 Smith, supra note 1.
 Susan W. Kline & Carita Austin, NLRB Expands Employer Options for Social Media and Non-Disparagement Rules, The Nat’l L. Rev. (Aug. 26, 2020) https://www.natlawreview.com/article/nlrb-expands-employer-options-social-media-and-non-disparagement-rules.
 The NLRB and Social Media, Nat’l Lab. Rel. Board, https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/the-nlrb-and-social-media (last visited Mar. 8, 2021).
 Melanie Webber, Social Media: A Defense Against Union Organizing?, Fisher Phillips (Apr. 1, 2019) https://www.fisherphillips.com/resources-newsletters-article-social-media-a-defense-against-union-organizing.