Dec 20, 2013
by Commentary by Thomas Triplett of Schwabe, Williamson & Wyatt
Facebook, Twitter and other social media have riveted the attention of the National Labor Relations Board (NLRB) during the past three months. Its Acting General Counsel has caused complaints to be issued in each region of the United States. Hardly a week goes by without another complaint being issued against employers who follow common sense as opposed to the narrow and perhaps fallacious views of the Acting General Counsel.
In American Medical Response of Connecticut the company had a policy prohibiting use of social media to discuss terms and conditions of employment, including wages. When this policy was violated, the Acting General Counsel concluded that the airing of grievances was a call for concerted activity among employees and was thus protected activity, even though demeaning.
The employer declined to litigate the case before an administrative law judge, rather electing to settle. Among the terms of the settlement were drastic revisions of the social media policy of the company. As a settlement, it does not constitute a precedent but it is clearly indicative of the views of prosecutorial arm of the NLRB.
In Karl Knaus Motors, a complaint was issued because the dealership terminated a salesperson who complained in social media about the handling of a sales event which could adversely affect his and coworkers’ earnings. In Hispanic United of Buffalo, a complaint was issued where five workers were terminated for communicating with each other, through social media, about workload and staffing issues. In Arizona Star, the Associate General Counsel of the NLRB Division of Advice declined to cause a complaint to issue where the employee aired inappropriate and offensive remarks, but they were not found to be a call for concerted activities.
What are the lessons to be learned from these cases? While it is tempting to take refuge in the fact that none were litigated to a conclusion that would be akin to the ostrich putting its head in the sand. The Acting General Counsel, Lafe Solomon, is a recess appointee of the President, and considered to be a powerful advocate for reinterpretation and expansion of employee protections under the National Labor Relations Act. Indeed he issued a recent Memorandum suggesting that, even in settled cases, a senior executive, in the company of an NLRB agent, read the terms of the settlement to an assemblage of their employees. What could be more demeaning? Second, the NLRB’s current four-member Board is populated with this President’s appointees and they have proven to be activists set upon redefining and enlarging employee rights.
So the lessons are these:
1.The social media rules apply to union and non-union companies. Any two employees discussing wages, hours, and working conditions in social media are engaged in protected activity.
2. Do not terminate an employee, without advice of counsel, for use of social media.
3. Draft a social media policy limiting use of social media to matters unrelated to wages, hours and working conditions.
4. Do not include in your policy restraints on dissemination of wage information.
5. Litigation with the NLRB is expensive, time-consuming, and given the vagaries of politics, the outcome is difficult to predict. Indeed a typical case may take more than five years to resolve. And, if you have transgressed the law, the remedy of backpay and reinstatement will be granted to any employee terminated by reason of the violation.
6. There is an emerging body of law that an employee will be granted the remedies of the Act, even if he or she has not yet engaged in concerted protected activities, but the employer, fearful that the employee will, terminates such person.
7. There is no bright-line rule when statements are so offensive as to lose their protection under the act. As a general principle, however, the Board bends over backward to protect employee speech, no matter the media.
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