The National Labor Relations Board enforces one of the oldest laws in the United States – the National Labor Relations Act – and regulates a labor-relations world that is deep-rooted in tradition, history and precedent.  As recent developments at the Board level have shown, however, even an old dog can learn a few new tricks.

A few weeks ago, the Board decided to start requiring employers and unions who customarily use electronic forms of communication to communicate with their employees or members to electronically distribute any Board-issued remedial notices in unfair labor practice cases.

Previously, the Board only required employers and unions to post remedial notices in those types of cases in “conspicuous” places in and around the workplace or union office.  Typically this meant putting a notice, for example, on a company bulletin board or near a time clock.

Now, employers and unions not only still have to continue to post the notices the old-fashioned way, but they have to do it electronically as well, whether that involves the use of e-mail, a website, a company or union intranet, or other form of electronic communication.  And to show how serious the Board was about making this change, they didn’t do it administratively; they actually issued a formal decision on the issue – J&R Flooring, Inc., 356 NLRB No. 9 (October, 22, 2010).

In issuing that decision, the Board also decided that it would retroactively apply the requirement of electronically communicating remedial notices (again, in instances where such communications are otherwise customarily used), even in cases which may have been previously filed with the Board, so long as they remain pending at any level within the agency.

While the J&R Flooring case is pretty progressive for a traditional agency like the NLRB, the Board didn’t stop there.  It has also recently taken up the cause for an employee it believes was wrongfully terminated when she criticized her supervisor on Facebook.

On October 27, the NLRB’s Regional Office in Hartford, Connecticut issued a complaint against American Medical Response of Connecticut, Inc. alleging that those criticisms amounted to concerted activity under Section 7 of the National Labor Relations Act, and that the employee’s termination for those comments therefore was unlawful.

Certainly, the possibility of an employee’s social media use adding up to concerted activity cannot be surprising.  Many law firms – this one included – have been smartly advising their clients of those dangers for several years already.   That risk is especially acute when – as in this case – the employee’s posted comment on Facebook about her supervisor drew supportive responses from her co-workers, and therefore prompted her to post additional negative remarks.

Taking legal action against an employee based on her use of social media to criticize her employer is a new breed of case that is only going to become more and more common in ensuing years.  As of the time being, though, there simply aren’t that many labor and employment cases out there – either at the Court level or the administrative agency level — addressing these issues yet, which is what makes the NLRB’s action in this instance so progressively compelling.  And it’s only one of what will probably be many battles in the new-era war between employers and employees over an employee’s use of social media.  For these reasons, tracking what comes out of the hearing in this case – on January 25, 2011, by the way, for those who are interested – definitely will be worth following.

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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