Seemingly intent on making sure it is perceived as current, if not trendy, today’s National Labor Relations Board (NLRB) has continued to demonstrate an avid interest in social media. Not only is it paying attention to new media in all its forms, but it is also actively participating, with a Facebook page, a YouTube channel and a Twitter feed.
On April 12, 2011, the NLRB General Counsel issued a memorandum (pdf) to NLRB Regional Directors updating the list of matters that must be submitted to the Division on Advice. Included on the list are cases involving:
employer rules prohibiting or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter.
This is expected to allow the Board to have an earlier and more uniform oversight of matters involving social media.
The directive comes after the Board’s recent involvement in matters concerning possible protected concerted activity on Facebook and Twitter. In late 2010, the NLRB challenged a company’s Social Media/Facebook policies which the company maintained were lawful. The case settled with the company agreeing to make suggested changes to its policies.
In April, 2011, the NLRB targeted another social medial resource – Twitter. According to the New York Times, the NLRB had warned a New York news agency that it planned to file a complaint accusing the company of illegally reprimanding a reporter over her criticism of company management in a Twitter posting. The Board asserted the company violated the reporter’s right to discuss working conditions with other employees. The matter was resolved when the union and company – which had been negotiating a new contract – reached a tentative contract on April 28, 2011. According to the New York Times, the company has agreed to negotiate a new social media policy that would include language that will protect employees’ speech and the right to engage in other concerted activity about working conditions.
The Board again focused on Facebook after issuing its directive. On April 27, 2011, the NLRB reported it had approved a settlement in a case involving a California web-based home improvement retailer. A former employee had claimed she was terminated from her employment in retaliation for having posted comments about the company and possible state labor code violations on Facebook. The case was resolved and as part of the settlement the company agreed to post a notice at the workplace for 60 days stating that employees have the right to post comments about terms and conditions of employment on their social media pages and that they will not be terminated or otherwise punished for such conduct.
It is only a matter of time before there is a litigated case and a court’s ruling addressing these very real and reoccurring issues. Employers should exercise care in how they handle social media issues from a labor relations perspective and treat the recent NLRB scrutiny as an invitation to revisit their own social media policies.