A few months ago, I wrote about how the National Labor Relations Board (“NLRB”) put on its progressive shoes and opined that an employee who posted criticisms of her supervisor on Facebook had engaged in concerted activity worthy of protection under the National Labor Relations Act (“NLRA”).  The NLRB filed a complaint against the employer on account of the employer disciplining the employee.

Employers are still wrapping their arms around the many different forms of social media.  This particular case was noteworthy because it was going to directly address the intersection between an employee’s right to use such media forms as a platform to complain about working conditions and the employer’s right to regulate an employee’s use of such media.

Unfortunately, employers are going to have to wait a little longer for an ‘official’ word about which of these competing ideals takes legal priority.  The NLRB recently settled the complaint that it filed against the employer prior to the scheduled hearing

Still, that does not mean employers lack guidance.  The initiation of this complaint by the NLRB provides some.

For one thing, employers should probably re-examine their social media policies for any provision that might limit an employee’s right to discuss hours, wages or working conditions with co-workers outside of work, including interacting in various forms of social media.  This is true whether you operate in a union environment or not.  That was one beef the NLRB had with the employer at issue in this case.  It felt the employer’s policies prohibited that kind of dialogue, and, as a part of the settlement, the employer agreed to revise their policies to permit such discussions.

For another, employers should not necessarily feel at ease over the settlement just because there is still no binding decision to hold them accountable.  The fact of the matter is that the NLRB’s position on the issue is now plain – formal decision or not.  And even though only one particular regional office brought this complaint, employers cannot assume that others will not do the same thing where they do business.  Simply put, employers should be on notice of the possibility that if their policies are not in line, or they discipline an employee who criticizes the employer or its management on some form of social media, they may be subject to a similar complaint in the future.

The intersection of social media and the law in the 21st century is going to continue to take center stage for years to come.  As it does, we will continue to use our own brand of social media – this blog – to stay on the cutting edge of analyzing those issues for employers.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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