Employers have already realized that social media have created numerous workplace issues. Quickly rising to the top of the list is the recent spate of National Labor Relations Board ("NLRB" or "Board") complaints based on employer attempts to set rules on employee social media use that may impact on employer interests.
Section 7 of the National Labor Relations Act protects employees – both union and non-union – who engage in "concerted activity" for their "mutual aid and protection." In 2004, the NLRB held in Southern Heritage Village that employer rules could restrict public statements by employees, provided that the employer rules were for the purpose of maintaining a "civil and decent work place" and did not explicitly restrict rights to engage in protected concerted activity, e.g., supporting a union drive.
In a virtual 180-degree turn, the NLRB has issued a number of complaints against employers of both unionized and unorganized employees who have sought to enforce social media policies in a variety of cases. For example, in Karl Knauz Motors, Inc., No. 13-CA-46452, the NLRB challenged the discharge of an employee who made a hostile Facebook posting about a sales event that he believed could impact the earnings of car sales employees. Similarly, in Hispanic United of Buffalo Inc., No. 3-CA-27872, the NLRB alleges that the nonprofit organization serving low income clients fired five employees for posting on one employee's Facebook page either negative comments about working conditions and staffing or various responses.
In March 2011, the NLRB also ruled in Wyndham Resort Development Corp. that the employer violated the NLRA when it issued a warning to an employee who said he "might not want to tuck in my shirt" and that "I did not sign up for this crap" in response to a possible dress code change. Overruling an Administrative Law Judge, a split NLRB reached the remarkable conclusion that the employee was engaged in protected concerted activity merely because he made his statement in front of other employees. The NLRB did so despite the fact that the employee did not purport to speak for anyone else and had not sought any co-worker input.
It appears that the NLRB, with an Acting General Counsel and union-sympathetic Board majority appointed by President Obama, will seek to treat as protected activity any social media postings that are possibly made on behalf of other employees or to induce or even prepare for group action. The cases being pursued by the NLRB also strongly suggest that the Board will attempt to drape a mantle of Section 7 protection even on harsh or profane insults posted to social media outside the workplace during non-working time if such posts arguably may be connected to concerted activity or the terms and conditions of employment. Whether the courts will agree with the NLRB's troubling new position remains to be seen.
Given this extremely aggressive NLRB approach to employer workplace policies and rules, employers should promptly work with experienced employment counsel to review their social media, blogging, email, and Internet policies to assess whether the NLRB could find that they improperly interfere with employee Section 7 rights. Any policy changes should be made before an employer needs to invoke the policy, whether because of improper employee activity or union organizing. Employers will need to walk the proverbial tightrope in seeking to control disruptive or otherwise inappropriate postings while not stepping on the NLRB's ballooning interpretation of concerted activity—especially given the vast array of sophisticated technology and social media now commonly used by employees.