The change in calendar year did little to keep the NLRB out of the spotlight. Multiple lawsuits are still pending in more than one jurisdiction to strike down the NLRB’s proposed rule to require employers to post certain information about employee rights under the National Labor Relations Act, a requirement now pushed for a second time to April 2012. And, much news has been made of the NLRB’s authority to act without a quorum, and President Obama’s recent “recess appointments” to try to fill the NLRB’s vacant seats. It seems that, more than ever, the NLRB is mindful of keeping the public informed about what it is doing, and justifying what it is doing.
Against that backdrop comes a new report issued just this week by the NLRB’s Acting General Counsel. The new report serves to update the August 18, 2011 report on social media cases and issues pending before the NLRB, about which I previously blogged and provided an analytical framework for employers to use when determining if they could properly take action in the face of employee social media use. The Acting General Counsel began this new report by stating:
“[T]hese issues and their treatment by the NLRB continue to be a ‘hot topic’ among practitioners, human resources professionals, the media, and the public. Accordingly, I am issuing this second report on fourteen recent cases that present emerging issues in the context of social media.”
The report is a fairly “user-friendly” read, and I recommend that you devote a few of your leisurely moments to review it. Four points are worth highlighting:
1. Eleven of the cases discussed in the report addressed some form of discipline based on employee social media use. Of those eleven, the NLRB found in six cases that there was no violation of the employee’s right to engage in “concerted protected activity.”
2. Seven of the cases discussed in the report addressed specific language contained in an employer’s social media policy. Of those seven, six policies were found to be overbroad and unlawful for at least one reason.
3. The NLRB emphasizes that employee posts that amount to mere individual griping or venting will not generally rise to the level of “protected concerted activity.”
4. The NLRB clarifies that an employee does not engage in “protected concerted activity” if there is no intent to initiate or induce co-workers to engage in group action, regardless of whether co-workers did respond or join in a particular discussion.
Employer Take Away: What should you as an employer take away from this development?
It’s almost like beating a dead horse: The law (and the NLRB’s interpretation of the law) continues to change rapidly, and you need to stay abreast of these continuing developments. In particular, the two questions you must continue to ask yourself and the people who make employment-related decisions in your company are: (1) What practices should we create and implement when it comes to potential discipline of employees who engage in social media activity that is deemed by the company to be inappropriate? (2) How can we draft (and enforce) an appropriate social media policy to minimize a potential violation of the law? We will continue to monitor these developments, and assist you with answering those questions.