Upon Further Review: NLRB Guide On Social Media Not So Bad.


The commonplace use of social media in the workplace has led to many new questions and concerns about what employees can or can’t say about their bosses, jobs, and coworkers on the various sites.  Towards that end, and in part due to a high profile lawsuit, the National Labor Relations Board (NLRB) recently released a guide for those employers and employees entertaining the outer limits and boundaries of posting comments regarding their workplace without fear of being fired.  This can’t be summed up in 140 characters or less, so you’ll need to read more when you have more, but here’s the gist of it.

The NLRB’s report focuses on two key areas: what kinds of employee conduct are protected under the National Labor Relations Act as “concerted activity,” and under what circumstances can employers punish employees for comments made on social media. “Concerted Activity” can be broadly defined as actions that are considered “Forming, or attempting to form, a union in your workplace,” and it applies both to workplaces that already have unions as well as non-union shops.

Also outlined are some guidance for employers:  It is illegal to dismiss employees for discussing workplace responsibilities and performance online or to discipline an employee for simply “liking” a Facebook comment that is critical of the workplace or employer. Further, should employees initiate negative workplace comments offline that then matriculate online via one or more social media posts, the comments are  protected under the National Labor relations Act.  The NLRB’s assertions are backed up by a series of legal decisions over the past few years, all of which are outlined in the report.

Bottom line is that disciplining employees for comments they make in social media is neither prohibited, nor is it without risk. Any decision to discipline or terminate employees for social media postings should be carefully weighed and reviewed with your labor & employment counsel. The rules for determining when activity is protected have not changed and individual complaints aired through social media are no more protected now than they were before social media came waltzing down the communication path.

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Posted on September 8, 2011, in Labor Relations and tagged , , , , , , , , , , . Bookmark the permalink. Leave a comment.

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