The NLRB’s After Us and We’re Not Even Unionized!
November 17, 2010
Many employers think that the National Labor Relations Board is the government’s agency responsible for dealing with union issues. While that is true, the NLRB is actually charged with protecting employee rights whether the employer is union or non-union. All employees and employers are covered by the National Labor Relations Act. Section 7 of the NLRA protects employees’ “concerted, protected activity”. Essentially, employees are allowed to communicate with co-workers about the terms and conditions of employment. An employer’s attempt to hinder or interfere with those rights is a violation of the NLRA which could lead to an unfair labor practice charge being filed on the employees’ behalf by the NLRB.
As an example, many employers believe that information about their employees’ rate of pay is a private matter between the employer and its employees. Accordingly, the employer may have a policy in place indicating that employees should not discuss their rate of pay with anyone. Such a policy would have the effect of preventing employees from discussing their rate of pay, or one of the terms and conditions of their employment, with other employees. Accordingly, the NLRB has taken the position that such a policy is a violation of the NLRA.
In a recent, somewhat frightening development, the NLRB has recently filed a complaint alleging that American Medical Response of Connecticut, Inc. (AMR) violated Section 7 of the act by terminating an employee for posting negative comments about her supervisor on her Facebook page. AMR has a social media policy that prohibits employees from disparaging the company and its supervisors in social media posts, even when posting while off-duty and using a personal computer. Apparently, the policy did not include a disclaimer that the policy would not be construed or applied in a manner that interferes with employees’ rights under the NLRA. The Board’s complaint is also noteworthy because of the fact that it appears to allege that merely having an anti-disparagement social networking policy violates Section 7 even if the employer does not actually apply the policy and impose discipline.
There is still a long way to go to see if the Board’s position will be upheld. Unless the parties settle the AMR matter, the complaint will first have to be heard by an administrative law judge, after which an appeal can be taken to the NLRB and then to a federal court of appeals: something that could easily take more than two years.
What Should Employers Do?
Employers should be cautious about terminating an employee for posting negative comments about the employer on social networking sites, especially when the content of the posting is concerted, protected activity. In addition, it may be wise to review your social media policy to add a disclaimer such as the one mentioned above.