Labor
Hispanics United of Buffalo posted a co-worker’s allegation that employees did not
do enough to help the organization’s clients. The initial post generated responses
from other employees, who defended their
job performance and criticized their
working conditions. Hispanics United
fired the five employees who participated
in the online dialog, claiming their comments in the posts, and other conduct,
constituted harassment of the employee
mentioned in the original post. The NLRB
complaint alleges they were illegally fired
for discussing working conditions.
Another pending case illustrates that
employers trying to protect their image
from disparaging employee comments
on social media may also be vulnerable. In May, the NLRB filed a complaint
when a Chicago car dealership terminated a salesman who posted photos
and comments critical of the food and
beverages the dealership offered at a promotional event. When asked to remove
the posts, the salesman did so, but was
terminated anyway.
The NLRB said the salesman’s posting was protected concerted activity
because it related to a discussion among
employees about the terms and conditions
of their employment. The dealership said
the salesman was fired for other reasons.
“Just the mere fact they’re prosecuting
these cases means a company has to incur
risks of dealing with an NLRB claim,”
says Marculewicz. “That is going to adjust
behavior from a corporate standpoint.”
law to be more favorable to unions and
employees,” says Yerkes.
Policy Considerations
In the absence of case law, employers have no choice but to try to define a
policy that walks the fine line between
protecting the company and preserving
employees’ rights. Along with discrimination concerns, employers should
consider Section 7 rights.
“Companies are really struggling
with social media policy in general and
how to deal with it from a whole host
of areas within employment law,” says
Marculewicz. “This is another aspect of it.”
While there is no formal guidance,
in its settlement with AMR, the NLRB
required management to promise they
would not “restrict employees from dis-
cussing their wages, hours and working
conditions with co-workers and others
while not at work, and that they would
not discipline or discharge employees
from engaging in such discussions.”
Nonunion employers especially need
to be reminded of their liability.
“This means general counsel have to
take a very careful look at all company
policies related to off-duty social media
utilization and figure out a way to craft
a policy so it is clear it is not intended to
chill or limit discussion of working conditions,” Yerkes says. n
Handbook Hardball
Tip of the Iceberg
The cases publicized to date may well be
just the tip of the iceberg. The NLRB’s
acting general counsel, Lafe Solomon,
told his regional directors to submit any
potential social media cases to the Advice
Division, which investigates ways to
implement the general counsel’s policies.
“He’s telling the regional directors,
‘You must check with me’ because he
is looking for fact patterns to move the
The na Tional labor rela Tions board’s (nlrb) focus on pro Tec Ting employees’ section 7 rights to engage in concerted activity is not limited
to social media policies. it also includes employee handbook confidentiality
policies that might be interpreted as restricting employees from discussing
wages, hours and working conditions.
in a case involving Jurys boston hotel, the nlrb in march overturned a
union decertification election after the union complained about three written
policies it had never brought up before. although the company withdrew the
policies, the nlrb found they were overbroad and violated section 7. it invalidated the election.
“it’s a real stretch to say an overbroad policy should overturn decertification,” says hal coxson, a shareholder at ogletree deakins. “now, every
employer must see if there is any policy that anyone could interpret as interfering with employees’ right to engage in concerted activity.”
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