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Originally published on Inside Counsel, June 18,
2012
Many employers with union-free workforces do not realize that
the National Labor Relations Act (NLRA), which protects an
employee's ability to engage in union activities and certain
other "concerted activities," also applies to non-union
workforces. This common misconception can, and eventually will,
prove costly, especially if employers prohibit or limit certain
communications by employees.
As most employers know by now, the National Labor Relations
Board (NLRB) undertook a significant effort to regulate the social
media world in December 2010. On August 18, 2011, the NLRB issued
the first of three (to date) memoranda addressing the legality of
numerous incidents of employee discipline based on violations of an
employer's social media or other similar policy. The NLRB
published a second memorandum on Jan. 24, which provided
similar guidance. Many of the cases addressed in these memoranda
addressed workplace policies of union-free employers.
One common theme emerged from the cases discussed in the first
and second memoranda: the NLRB's focus on the
"concerted" nature of the employee's social media
activity. To determine whether the NLRA will protect certain
employee activity, employers should ask themselves the
following:
Is the activity engaged in with or on the authority of other
employees and not solely by or on behalf of the individual
employee?
If individual activities, are they "logical
outgrowths" of concerns expressed by employees
collectively?
Does the activity involve circumstances where individual
employees seek to initiate, induce or prepare for group
action?
Does the activity involve circumstances where individual
employees bring "truly group complaints" to
management's attention?
If any of these conditions apply, the NLRB will consider the
activity to be protected by the NLRA.
In its latest memorandum addressing social media issues,
released May 30, the NLRB expanded the scope of its attack to all
workplace policies dealing with employee communications. The seven
cases discussed in this memorandum addressed social media,
electronic communications, non-disparagement, non-violence and
confidentiality policies.
In this context, the NLRB reiterated the standard by which it
judges the lawfulness of a social media policy under the NLRA: To
be unlawful, a work rule does not need to expressly restrict
Section 7 activities (e.g., "employees cannot form
unions"). Recognizing that most employers have policies that
make no mention of Section 7 rights or the NLRA at all, the NLRB
pointed out that these policies may nevertheless violate the NLRA
if:
Employees would reasonably construe the rule or policy's
language to prohibit Section 7 activity
The employer promulgated the rule or policy in response to
union activity
The employer applied the rule or policy to restrict the
exercise of Section 7 rights
Unfortunately, the NLRB was less than clear in its recent
memorandum as to what meets the "reasonably construe"
standard. On one hand, the memorandum summarized cases in which the
NLRB believed the average worker knows the NLRA fairly well.
For example, the NLRB found a policy instructing employees to
not "pick fights" unlawful because, without further
clarification, "employees would reasonably construe this rule
to prohibit robust but protected discussions about working
conditions or unionism."
Likewise, a policy prohibiting unauthorized disclosure of
"confidential information," a term not defined in the
policy, violates the NLRA because "employees would construe
these provisions as prohibiting them from discussing information
regarding their terms and conditions of employment."
On the other hand, the memorandum cited a case in which the NLRB
determined a general "savings clause" that explicitly
referenced the protection of Section 7 rights does not help
save overbroad policies because the average worker cannot possibly
know what the clause means. These clauses, according to the NLRB,
fail to cure unlawful policies "because employees would not
understand from this disclaimer that protected activities are in
fact permitted."
The takeaway from the NLRB's recent foray into the social
media world and the validity of confidentiality, non-violence and
similar policies is simple. Employers, regardless of union presence
in their workplace, should take notice. Every employer should
re-evaluate, and potentially revise, any workplace policy that
restricts an employee's ability to communicate with others in
broad terms. If nothing else, employers should review the social
media policy that the NLRB attached to its May 2012 memorandum,
which the NLRB believes fully complies with the NLRA.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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