As an increasing number of employees use social media like Facebook and Twitter to communicate with their coworkers, the NLRB has recently issued a series of rulings and advisories that seek to protect employee rights in a social media context. Employers often seek to discourage employees from posting comments that reflect negatively on the company or management. Often, violations can be a firing offense. Yet applying the principles of the 1935 National Labor Relations Act, the NLRB has said that workers have a right to discuss working conditions freely and without fear of retribution, whether that discussion is in a public place online or in a private location in the office.

Further, the NLRB ordered the reinstatement of workers fired for violations of invalid social media polices and the rewriting of social media policies by companies nationwide. These rulings apply to virtually all private sector employees and tell companies that it is illegal to adopt broad social media polices (like those that ban comments that are disrespectful or criticize the employer) if those policies discourage workers from exercising their right to communicate with one another with the goal of improving wages, benefits , or working conditions. Yet, the agency did find it permissible to act against a lone worker ranting on the Internet.

For example, in a 3 to 1 decision last month, the NLRB found that workers venting after a coworker threatened to complain to the boss that others were not working hard enough was the type of “concerted activity” for “mutual aid” that they aimed to protect under the National Labor Relations Act. And yet the NLRB affirmed the firing of a police reporter at The Arizona Daily Star who tweeted several comments including, “You stay homicidal, Tucson” after he was frustrated at a lack of news to cover. Further, the board also reaffirmed the firing of a bartender in Illinois who, frustrated about not receiving a raise, called his customers “rednecks” on Facebook and said he hoped they choked on glass as they drove home drunk.

Some companies have criticized the decision saying that its impact is too broad. While the 1935 Act only applied to a worker’s right to unionize, this decision applies social media protection to all workers, both union and non-union. Yet, union membership recently reached a ninety-seven year low, so commentators have suggested the decision could be an attempt for the NLRB to remain relevant as unions shrink in size and power.

Further, others have criticized the ruling for creating too much uncertainty. The NLRB ruling encourages companies to adopt social media polices that are specific rather than imposing across-the-board prohibitions. But what meets these standards is difficult to determine in advance and often leads to an extremely fact-specific inquiry.

Was the NLRB’s ruling too broad? Will it set a precedent for applying more outdated labor laws to the digital era? Is a worker’s right to discuss workplace conditions at the water cooler really the same as the right to discuss these rights on a medium open to the public?

Brooke McLeod

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