2 Key Lessons from the National Labor Relations Board Report on Social Media Cases

The National Labor Relations Review Board recently released a 24 page report concerning 14 social media related cases. There are 2 key lessons every employer should learn from this report. . . . Read on.

First, some background. For those of you who may not know, The National Labor Relations Act was enacted in 1935 by Congress. It has three primary purposes: protect rights of both employees and employers, encourage collective bargaining, and curtail harmful private sector labor and management practices. The National Labor Relations Board (NLRB) is an independent federal agency which ensures these rights are protected. The NLRB is composed of a five member board, each appointed by the president for five-year terms. The board serves as a quasi-judicial body in making case decisions based on administrative hearings.

The term “protected concerted activity” is used to describe the rights of employees to act together on matters which concern the terms and condition of their employment, including the right of one employee to act on behalf of other employees. When the act was written, such activity mostly took place in person during face-to-face conversations. Today, much of “protected, concerted activity” can and does take place online.

It does get tricky. There is a fine line between what is and is not protected, especially where social media is concerned. Just because an employee is ranting online about an employer, does not mean the rant is “protected concerted activity.” Some determining factors include: are other employees involved in the discussion (and how so)?, and is the employee acting on the behalf of other employees?

The report released on 8/18/11 by the NLRB provides some insight for CEOs determining social media policies for their agencies. I highly recommend that any CEO or HR Director make the time to read this document, located on their main website.

Two key lessons from the memo are:

  • Four of the cases reviewed found that the activity was protected by the NLRA. In five cases, activity was not found to be protected by the NLRA.  Bottom line: employers should not make policies which limit (or appear to limit) employees’ right to discuss issues concerning terms and condition of employment with other employees and with the media. . . Be very careful when you tell employees what they can or cannot do on their own time.
  • Five of the cases reviewed in the memo found the employer at fault for overly broad policies. Bottom line: policies should be specific enough to be applicable. . . Is that vague enough for you? For tips on creating policies and for sample policies, visit my Social Media Policies resource page.

I will continue to watch for and pass along to you any important updates from the NLRB.

Food for thought: your best policy for social media may not be your social media policy at all. Perhaps your best policy concerns how you resolve grievances. This is both a written policy (or policies) and an organizational culture.

For more information about creating social media policies, visit my Social Media Policies Page.


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