This past Friday, the United States Chamber of Commerce issued an extremely comprehensive and enlightening “Survey of Social Media Issues Before The NLRB”. The Chamber had sent a Freedom of Information Act request to the NLRB and received 129 cases back, including 117 charges, 7 complaints, and 5 settlement agreements. The resulting product echoes many of the prior discussions contained in this blog, and provides a reader-friendly discussion of the legal principles at issue, the trends in social media cases that have been in front of the NLRB, and the facts and circumstances underlying each allegation and result of the cases summarized.
The Chamber notes right upfront that “[i]t is hoped that this survey can assist employers and counsel identify issues with which they should be aware as they grapple with the application of labor law to employee use of social media.” This survey will indeed add much to the discourse.
Employer Take Away: What should you as an employer take away from this development?
We all continue to learn, as the NLRB’s role as traffic cop in the intersection of social media and employment law continues to develop. There are at least five points you can take away from this particular survey:
(1) You should remember that the issues before the NLRB are not limited to union facilities. Private, non-union employers are also subject to the jurisdiction of the NLRB, and must also comply with the proscriptions in the National Labor Relations Act.
(2) As much as an employer’s words and conduct toward an employee have prompted complaints, it is equally the overbroad nature of the employer’s policies that apparently have been problematic for the NLRB. Not everything is inappropriate for a social media policy, and the NLRB will not deem every social media policy to be violative of the law. However, you need to strike the proper balance when crafting and revising your policy.
(3) Notwithstanding point (2) and the importance of the written policy language, the NLRB will still look beyond the policy itself at the context and totality of circumstances surrounding your company’s practices, and the precise nature of the charging party’s individual dispute. How you handle and seek to resolve whatever action you take will go a long way in determining the outcome of an NLRB complaint.
(4) It remains critical for you to ensure that you also have the appropriate monitoring policies and practices, as the NLRB will also consider the manner in which your company learned about any social media activity that prompted an adverse decision. There is a big difference between public postings and surreptitious discovery.
(5) No quick triggers. At the end of the day, there is no true distinction between social media activity, on the one hand, and statements or conduct by employees through means other than social media on the other. Yet, companies still appear to be more sensitive to (and, therefore, more likely to react more quickly to) social media activity. As we begin to better understand the role that the government may continue to play in watching over your company’s employment decisions in this area, you must take time to analyze each situation, in many cases with counsel, to make sure you are ultimately taking the right approach.