Social Media Induced Labor Pains

With greater frequency, the National Labor Relations Board (NLRB) has been exerting its authority over non-union employers.  I’d like to share an article that I co-authored with my colleague, Mike Leahy, for the Spring 2012 issue of Focus, our firm’s quarterly newsletter, about a few recent developments from the NLRB affecting non-union employers, resulting from the use of social media.  The full issue of Focus is available here.

A few years ago, many employers feared that use of social media would lead to disclosure of their confidential information and trade secrets, and implemented policies to stay ahead of the curve.  Over the past year, high profile cases involving those social media policies have provided a timely reminder that the  Depression-era National Labor Relations Act (NLRA) continues to apply to union-free workplaces, and not just unionized workplaces.

Indeed, the current chair of the National Labor Relations Board (NLRB) recently announced that he wants the NLRB to be viewed as a “resource for people with workplace concerns that may have nothing to do with union activities.” He has the law on his side.  Section 7 of the NLRA gives employees the right “to engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This means that the NLRA does not simply protect the rights of employees who have a union, but it exists to “promote workplace democracy” more generally.  With only about 7% of the private workforce unionized, a renewed emphasis on union-free workplaces may be one of the only ways the NLRB can remain relevant, other than to make it easier for unions to organize.

Last year, in the first litigated case of its kind, an Administrative Law Judge (ALJ) ordered reinstatement and back-pay against a non-union employer who fired several employees for their conduct on Facebook. The case began with one employee writing on her public Facebook profile that a co-worker “feels that we don’t help our clients enough at [work.] I about had it! My fellow [co-workers] how do [you] feel?” Soon enough, a number of employees chimed in with disrespectful messages about the co-worker.  For her part, the co-worker complained to the company that she believed she was being harassed by the five who commented on Facebook.  As a result, the company fired all five for violating its “zero tolerance” policy against harassment.

The ALJ found that the terminations were unlawful because the comments were protected by Section 7 of the NLRA.  Notably, the ALJ rejected the employer’s claim that it was merely following its internal policy against harassment.  The employer was ordered to offer reinstatement and pay full back-pay to the five terminated employees.

Last Fall, the NLRB’s Acting General Counsel, who makes decisions about the NLRB’s enforcement agenda, released a report describing his office’s approach to social media cases.  The report covered 14 cases, and offered some guidance for employers who wish to comply with the law.  The key points from the report were:

(1) Employer policies should not be so sweeping that they prohibit the kinds of activity protected by the NLRA, such as the discussion of wages or working conditions among employees; and

(2) 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, but will be protected if they relate to terms and conditions of employment.

These internet-age developments have come as a surprise to union-free employers who previously viewed the NLRA as a “union shop only” law.  However, by drawing attention to traditional labor law, the NLRB’s scrutiny of social media may be a blessing.  This is because even more significant changes are underway at the NLRB that may not have made it onto employers’ radar screens if these well-covered social media cases had not brought this agency into their view.

First, the NLRB has been issuing decisions that could be alarming to employers about what kinds of groups are appropriate for bargaining.  Specifically, the NLRB has been allowing unions to organize “micro-units.” For instance, one decision held that a casino’s blackjack dealers should be allowed to organize in a distinct group separate from the poker dealers.  From a union organizer’s perspective, this is beneficial.  It is easier to organize a small group and gain a toehold than it is to organize an entire workplace.

Second, in April 2012 the NLRB is implementing major changes to the scheduling of union elections and litigation over whether an election should be held at all.  Currently, elections are typically scheduled about 38 days after a union files with the NLRB, which is often the first notice an employer has that a union is on the scene.  This change will undermine the ability of employers to lawfully respond to union campaigns without violating what are often viewed as counter-intuitive NLRB rules about employer speech.  During the critical period before an election, even supervisory comments as seemingly well-intended and benign as, “please bring your concerns to me so that I can make this a better place to work,” are usually unlawful, and could result in an unfair labor practice charge.  Besides being a costly process to work through, unfair labor practice charges may result in a rerun election, or even imposition of an obligation to recognize a union and bargain with it without an election.

In this economic and political climate, effective management training as to social media usage by employees and advanced preparation for a potential union campaign may well be one of the best investments a company can make.