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Even employers without union employees can run afoul of the National Labor Relations Act (“NLRA”), which is enforced by the National Labor Relations Board (“NLRB”). Although the total number of unionized employees in the United States has been dropping over the past 70 years (private sector union membership alone dropping from 16.8{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} in 1983 to just 6.9{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} in 2010), the provisions of the NLRA apply to many employers, not just those with a unionized workforce. This article will touch on a few provisions of the NLRA, and explain how employers – regardless of their size or number of workers – can get in trouble by enforcing what they thought were reasonable workplace rules and policies.
Concerted Activity: The NLRA protects “concerted activity” in both union and non-union contexts. The NLRB defines concerted activity as “two or more employees taking action for their mutual aid or protection regarding terms and conditions of employment.” Even a single employee can be engaging in concerted activity if that person is acting on the authority of other workers, bringing group complaints to an employer’s attention, or trying to induce or prepare for group action. One simple example of concerted activity is an employee talking to another employee about the size of a raise or bonus. Some employers would like to have a “compensation is confidential” rule in place – but that sort of rule is a violation of the NLRA’s “concerted activity” protection for workers. Employers need to be cautious about restricting employees from discussing workplace concerns – pay, work assignments, safety concerns, workplace conditions, complaining about co-workers or supervisors – because all of these can fall under the “concerted activity” rubric, and are potential grounds for an unfair labor practice case before the NLRB.
Social Media and the Workplace: An entire Fine Print article could (and probably will, in the future) be written about social media issues in the workplace. For the purpose of this article, the issue is how social media (e.g. Facebook, Twitter, personal blogs, etc.) can implicate the NLRA. According to the NLRB, in the last twelve months workers have filed labor complaints (called “charges”) against more than 100 (mostly non-union) employers for improper activity related to social-media practices or policies. The agency now faces applying labor principles dating back to the 1935 origin of the NLRA to the increasingly online 21st century. It is very likely that many of a company’s employees have a “Facebook” account. Facebook has over 800 million users, and those users “like” or comment on more than 2 billion posts per day. One study found that 77{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of Facebook users log on during work hours. So it is likely that employees will post a comment about a workplace related issue – either during or after work hours. If an employee is “friends” with another employee on Facebook, the posts and comments to posts can easily be considered “concerted activity.”
Similarly, employees posting photos online can also fall under the “concerted activity” protection. In a recent NLRB case, a car salesman posted a photo of a car that had crashed into a pond during a test drive – the photo was quite embarrassing to the luxury car dealership. He also posted photos of a luxury car sales event, where the food served was less than deluxe (hot dogs and popcorn). Nevertheless, the commentary along with the photos was held to be protected under the “concerted activity” standard. The car salesman (who was not a union member) was terminated by his dealership, but ordered reinstated following a challenge to the NLRB.
That is not to say that everything an employee says, writes about (some people still do write letters to the editor), or posts online is protected. Comments that are so disloyal, reckless, or maliciously untrue can lose NLRA protection. A newspaper reporter’s “tweets” on Twitter were found to be unrelated to her workplace (they were offensive comments about a television reporter), and her termination was found to be lawful by the NLRB. Another employee who posted comments on her senator’s Facebook wall, complaining about her workplace conditions and pay policies, was lawfully terminated. The NLRB found that the employee was not raising group concerns, and had not discussed her Facebook post with her co-workers. Therefore the Facebook post did not qualify as “concerted activity,” and was not protected under the NLRA.
Workplace Policies: Employers should have a social media policy in place – in addition to an employee handbook — to define relevant workplace policies and procedures. The terms of any social media policy will be unique to the nature of a particular company’s business. But it is important that all workplace policies recognize the rights employees have under federal, state, or local law; and at the same time provide reasonable protections for the company. Despite the recent influx of charges, the NLRB has yet to provide specific guidance for employers on what is “protected concerted activity” in the realm of social media. The attorneys at Samuels Yoelin Kantor are carefully watching this developing area of labor law to best advise both employers and workers.
Timothy J. Resch is a civil litigator with an impressive local and international history helping employers and small businesses find success in federal and state court litigation matters.
You can contact Tim directly at tresch@samuelslaw.com.
