The NLRB's New Regulation of Social Media

Most employers who operate workplaces without labor unions think that they are unaffected by the pronouncements of the National Labor Relations Board. They should think again. In a series of recent cases, the NLRB's general counsel has taken the position that employee activity on social media sites like Facebook and Twitter can trigger certain rights under federal labor law for even nonunion employees.

For example, in May, the NLRB issued a complaint alleging that a BMW dealership outside Chicago violated the rights of a nonunion car salesman who used his Facebook page to complain about the quality of the food his employer had served at a sales event, complete with photos of the offensive hot dogs and water bottles. The dealership fired him for his posting, which was accessible to his fellow salesmen.

Because the salesman's comment on the hot dogs and water also mentioned his fear of the negative effects that such meager fare could have on his commissions, the general counsel found that his comment qualified as "protected concerted activity" under § 7 of the National Labor Relations Act (NLRA), which confers on workers the right, among others, to engage in "concerted activities for the purpose of…mutual aid or protection." Many employers would be surprised to learn that, under settled law, conversations among workers concerning their compensation is "protected activity" under federal labor law, and the NLRB has for many years been of the view that company policy prohibiting employees from discussing their compensation with one another violates their § 7 rights. See Double Eagle Hotel & Casino, 341 NLRB 112 (2004). Building on that precedent, the labor board in the 21st century has ruled that employers violate federal law if they discipline employees for making website statements concerning the terms and conditions of their employment. See Valley Hospital Medical Center, 351 NLRB 1250, 1252-54 (2007), enf'd in part, 2009 WL 4894275 (9th Cir. 2009).

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Source: law.com
By: Michael Starr and Katherine Healy Marques