Under the National Labor Relations Act (NLRA), employees have the right to work together to ensure good working conditions. This statement is true regardless of whether there is an employee union in the workplace. This right includes the right to engage in what is called “concerted activity.” In short, concerted activity is any activity undertaken by two or more employees in regard to any of the terms and conditions of employment. It also includes action taken by an individual employee when that employee is either working on behalf of others, with the authority of others, in an effort to get others to join their cause, or in preparation for any of the above.
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This right to engage in concerted activity includes actions such as employees discussing pay, working conditions, or safety concerns. Employers must be sure not to block the right of employees to have these discussions. This sounds simple enough, but employers have gotten into trouble in the past when taking overly-broad steps that inadvertently curb this type of communication. In recent years, social media has come to the forefront of this discussion.
Social Media Policies: Steer Clear of NLRA Violations
Social media communications by employees are a prime example right now because of the prevalence of social media use both inside and outside the workplace. In recent years, employers have moved to create comprehensive social media policies, outlining when and where employees can use social media as it relates to the workplace and as it relates to using employer-owned equipment. Employers also often dictate who can speak on behalf of the company in online forums. These types of policies are often necessary and the majority of employers today utilize them.
Where the problem starts is when an employer’s social media policy entirely prohibits employees from speaking about the organization on social media. The National Labor Relations Board (NLRB) has deemed that this type of prohibition can, in effect, become a way to stifle an employee’s right to concerted activity in some instances. For example, if an employer’s policy prohibits the employees from ever making any negative statements about the employer online, that prohibition may negate an employee’s right to concerted activity if their statements are discussing working conditions with other employees.
This issue has come to light in recent years when employees have faced discipline for such actions (up to and including termination) and have contacted the NLRB for assistance. In the cases that have been investigated by the NLRB in the last few years, they have indeed found some social media policies to be overly broad in their restrictions.
Where is the line? And how can an employer be sure not to cross it while still protecting its own interests?
To begin to answer this question, the NLRB has issued memos outlining its recent cases and decisions; these memos from the NLRB General Counsel are meant to provide guidance to employers so they can understand what types of policies violate an employee’s right to discuss working conditions. Employers can review these memos to get an understanding of the NLRB’s stance in specific cases. If in doubt, consult these memos as a first step to understand what type of policy language goes too far. Always consult an employment law attorney with questions.
Links to the three memos can be found here: http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media
About Bridget Miller:
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.