Social Media Employment Law

A Public Menage A Trois – Joining The NLRB’s Public Posting Party

Literally translated, the term means “a household of three.”     And when it comes to the hot button issue of the NLRB’s new employer posting requirement, we now have all three houses of government involved.  

On the executive pole, we have the NLRB, which initially announced on August 31st that virtually all employers would be required to post an 11-inch by 17-inch poster advising employees, among other things, of their right to unionize (that compliance deadline has since been extended from November 14th to January 31, 2012 “to allow for further education and outreach”).   On the judiciary pole, three courts have been asked to enjoin enforcement of the NLRB’s posting rule and to strike down that rule as beyond the NLRB’s jurisdiction.   Two of the cases have been filed in D.C., and one has been filed by the United States Chamber of Commerce in South Carolina – a state not generally enamored with the NLRB.   No rulings yet from any of the courts.

Now, we have the legislative branch jumping into the contentious party.   Having apparently solved the nation’s economic crisis, energy dependence, and dwindling world peace, the United States Congress has fixed its bedroom eyes on this posting issue.   Unlike the hundred-page, if not thousand-page, pieces of legislation that normally find their way onto the legislative floor, this new bill is one page, and one sentence long:

“The proposed rule issued by the National Labor Relations Board entitled ‘Notification of Employee Rights Under the National Labor Relations Act’ (76 Fed. Reg. 54006 (August 30, 2011)) shall have no force or effect.”

The intent is pretty clear.   Who will come out ahead in this dance?   We will continue to update developments on this issue involving an interesting threesome, but not a lot of love.

Employer Take Away:   What should you as an employer take away from this development?   

It is clear that the role of government in matters affecting the workplace (involving social media and otherwise) is a highly-charged issue, and one that is still not going away.   As I have blogged before, I think the concern about posting employee rights under the NLRA is slightly overstated, but I certainly do share the outrage of employers who believe that this latest posting requirement is perhaps another step in a course of desired government activism into the private sector. 

Either way, employee rights in the workplace are on everyone’s front burner.   That makes it more important than ever to ensure that any decisions you make, or policies you effectuate, regarding your employees’ activities are well grounded in fact and law.

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