Some employers don’t realize Section 7 of the National Labor Relations Act (NLRA) protects the rights of all employees, regardless of union status, to form or join, labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities, such as discussing wages, work conditions, and other terms of employment. Should an employer interfere with this right, it is considered an unfair labor practice.
The term chilling refers to discouraging, depressing or deterring employees from exercising their rights under the NLRA. A non-union employer who prohibits employees from discussing wages under the confidentiality section of their employee handbook is an example of chilling the employees’ right to engage in concerted activity. Concerted activity is an employee action that concerns working conditions of others in addition to the employee and that contemplates group activity. Concerted activities are protected by the National Labor Relations Act and cannot be used as a reason to discharge or discipline an employee. Any interference, restraint, or coercion of employees in the exercise of their rights by an employer is considered an unfair labor practice, regardless of whether the employees are unionized or not.
Most social media policies prohibit disparaging remarks about the company, its products and management whether the blogging takes place on company time and equipment or not. The National Labor Relations Board (NLRB) is examining whether this is an unfair labor practice. In 2008, the NLRB ruled that employers have the right to restrict e-mail use; barring use of the company’s e-mail system to communicate union activities. In the Register-Guard case, the union president was reprimanded for sending e-mails regarding union activities. The union filed a complaint and the NLRB viewed e-mail as a means of commercial or organizational communication and stated companies have the right to control the use of their equipment.
In 2009, the NLRB issued an advice memorandum regarding Sears and Kmart Holding Corporation’s (Sears) social media policy and determined it could not be interpreted to chill Section 7 activity. Sears’ service technicians belonging to the International Brotherhood of Electrical Workers use a listserv to communicate with each other across the country about work related concerns including union campaigning. The Sears policy did not prohibit union discussion, but did prohibit disparaging comments about products, services, leadership as well as intellectual property, and obscenity, reference to illegal drugs or discriminatory comments.
Currently, the NLRB is testing the protection of concerted activity in a complaint filed against the American Medical Response of Connecticut for firing an employee who posted disparaging remarks about her supervisor on Facebook. Lafe Solomon, NLRB’s acting general counsel, said, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”
Given the makeup of the members of the NLRB, this current case is one to watch. As a result of the Sears case, employers need to review their social media policies to assure there are not broad restrictions. It is advisable to list violations of company policies such as confidentiality, and anti- discrimination. Review your social media policy to ensure it does not focus on or strictly prohibit concerted activities.
Click below to read more.