You have employees, but no union. So no need to worry about labor law, right? Not so fast. Some of the hottest developments in employee relations/employment law center around the National Labor Relations Board (NLRB) and its recent enforcement activities. It has been going after even non-union employers for their social media and other policies, for disciplining employees for Facebook posts, and more.
Section 7 of the National Labor Relations Act (the “Act”) applies to most union and non-union employers. It protects employees who engage in “concerted activity” for the purpose of collective bargaining “or other mutual aid or protection.” What does that mean? Employees—union or not—have a legally-protected right to engage in discussion or otherwise act together to improve pay, working conditions, and other terms and conditions of their employment.
What is not protected? Activities that do not relate the terms or conditions of employment are typically not “concerted activity.” And comments or posts that represent a personal rant, but that are not made to a particular audience or on behalf of others, or that do not spark a response from a co-worker may not be protected, too. Finally, engaging in reckless or malicious behavior may cause otherwise protected activities to lose their protection. For example, making harassing, intimidating, or threatening comments; spreading lies about the employer; or revealing confidential information may erode this “concerted activity” protection. It all depends on the particular facts and circumstances.
Again, this right to engage in “concerted activity” applies in most every workplace, union or not. But even some of the most sophisticated managers and business owners are unaware of that protection. The NLRB’s recent activity, however, confirms that what you don’t know can hurt you. (Hint: tell your fellow managers/supervisors about this!) Here are some recent examples of the NLRB’s enforcement targets.
Firing for Facebook Posts/Having Overly-Broad Social Media Policies: Get some legal advice if your employee rants about your company on Facebook, and you want to consider discipline or termination. The NLRB has recently pursued several employers for doing just that. For example, NLRB has determined that the following Facebook posts did/could involve protected “converted activity:”
- A car salesman mocked online his employer, a luxury car dealership, for serving hot dogs and bottled water. The activity involved co-workers, who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.
- An employee posted that her employer had “messed up” and that she was “done with being a good employee” (using expletives) after she was transferred to a position where she was likely to earn less money. Her co-workers responded with supportive comments.
- An employee did not receive a promotion. She posted that the successfully-promoted person “did not do any work,” and that the company “did not know how to tell people when they did a good job.” After coworkers commented, the employee responded that she appreciated their support and “that this wasn’t over by a long shot… .”
Disciplining or firing employees for posting online might be the right move—but if you do it for posts that involve “concerted activity” as described above, you might just find the NLRB knocking at your door.
Social media policies are a great idea. They can remind employees to “think before you post” and help avoid problems. Be careful, though, about going too far with those policies—the NLRB has recently targeted social media policies that have a “chilling” effect on concerted activity.
Other Handbook Policies that Could “Chill” Concerted Activity: This enforcement activity from the NLRB doesn’t just stop with social media policies. More recently, the Board has decided to take a look at other types of handbook policies, too—anything that could possible “chill” the right to speak out together for mutual aid and protection.
What about having a policy that simply prevents “disrespectful” comments? That may seem reasonable, but watch out for the NLRB’s view. It recently went after a company whose policies directed employees to not “damage the Company, defame any individual or damage any person’s reputation, or violate the [Company] policies.” The NLRB determined that this policy was overly broad because it could be interpreted by employees to prohibit concerted activities protected by the Act. According to an administrative law judge, a disclaimer that the policy was to be applied only as consistent with the law could not save the “chilling” effect of the policy.
The take-home point: Don’t bury your head in the sand when it comes to concerted activity. Smart employers are getting the message out on proper social media use and other communications, but doing so carefully. It’s time to inform or remind managers about these labor law protections, and to seek legal review of company policies to make sure they avoid a potential “concerted activity” violation.
This article was written “in concert” by attorneys Kurt Barker and Annie Nelson, both of Karnopp Petersen LLP. It was not written, however, for their mutual aid or protection—it was written for your information only (seek legal advice about your particular workplace, or contact Karnopp Petersen at 541-382-3011).
