Schools around the country have been surprised to hear that the National Labor Relations Board (NLRB) has been jumping into the middle of the social media frenzy between employers and employees. In what seemed like an initial flash in the pan, the NLRB began to charge employers with wrongful termination for firing employees who had overstepped employer social media policies or written about employers and employer actions on Facebook and other social media pages.
These legal actions came as a surprise to many schools and other employers, who generally think of the NLRB as a union rights government agency, not one that tends to get involved with employers and non-unionized employees. Further, many of the employee actions in question seemed like fireable offenses, making schools wonder how they should act in similar situations. The NLRB has recently issued an overview of 14 different scenarios involving both employee actions and employer policies that it has considered in the past year.
The NLRB document was designed to provide guidance to employers and employees as well as the NLRB branch offices around the country. NAIS has prepared a longer publication for schools, walking through some of the intricacies of this guidance. However, the main takeaways for schools are summarized below:
- Even non-unionized employees are protected under this area of labor law — referring to the right to enter into protected, concerted activity.
- If an employee is complaining about anything remotely resembling a working condition on a social media interface (such as Facebook, Twitter, a personal blog, etc.), the school needs to make sure that the statement is not a protected activity under the National Labor Relations Act before taking punitive action.
- In order to be a protected activity, the language, photos, or other postings must be made in concert with, on the authority of, or in an effort to bring together a group of employees. This can be difficult for a school to tell from a singular posting. The employee may have discussed the issue with other employees and the posting may be a follow-up to the conversation or other communications.
- Language or other activity can be so out of line that it loses protected status, but this is not always readily discernable, and schools should not make an assumption based on the initial reaction.
- Social media and other online policies need to be crafted to ensure that the language does not inadvertently chill the employees’ rights under the National Labor Relations Act (NRLA). Policies that seek to limit the kinds of online speech employees engage in should be careful to note that the policy is not intended to limit the employees’ rights under Section 7 of the NLRA.
For a more complete review of the guidance and the issues found within it, see The New Water Cooler on the Web: Employee Postings in Social Media in the Legal Advisories section of the NAIS website.
