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Social Media and the National Labor Relations Board By: Scott Mara, SHRM-CP, PHR-CA

Posted By Cindy Hesch, Thursday, July 13, 2017

Social Media and the National Labor Relations Board

By: Scott Mara, SHRM-CP, PHR-CA

We live in a time that allows anyone with a smartphone or laptop to post selfies, comments, and videos. We can post pretty much anywhere and at any time. The list of social media platforms continues to grow. Admit it you probably use at least one of the following apps: Facebook, Instagram, Flickr, Snapchat, Twitter, LinkedIn, YouTube, e-mail, and blogs. Using these apps can be fun and keep us connected to our friends, associates and family, but the scary part is when our employees cross the line of appropriate communication. Granted, not all employees use social media for bad things. According to the Pew Research Center (PRC) (a nonpartisan think tank that conducts research on various social and technology issues facing society) the biggest reason employees (34%) use social media at work is to simply take a mental break from work. The others reasons according to PRC* are:

·         Connect with friends and family at work – 27%

·         Make professional connections – 24%

·         Get information that helps solve problems at work 20%

·         Build or strengthen personal relationships with co-workers 17%

·         Learn about someone they work with – 17%

·         Ask work related questions of people outside their organization – 12%

*Survey conducted Sept. 11-21, 2014. “Social Media and the Workplace.” Pew Research Center-

However, sometimes employees don’t think about or care who the audience is or the language they use to complain or vent about their manager, working conditions, co-workers, HR (yes even us), and wages/benefits. Companies can face legal and compliance issues if they respond incorrectly. The National Labor Relations Board (NLRB) has recently been getting more and more involved in social media cases. The NLRB in its current format is, in my opinion leans more to the left of center. However, recently new appointees have been named to the NLRB and hopefully will help get us back to the center. Only time will tell.

            What the heck is the NLRB? Well, the NLRB is an independent agency charged with enforcing U.S. labor law in relation to collective bargaining and addressing unfair labor practices. One phrase all HR professionals need to know is the Protected Concerted Activity (PCA). PCA gives employees the right to act together (two or more) to try to improve their pay and working conditions with or without a union. Employers may not fire, suspend or otherwise penalize employees for exercising their rights. NLRB has acknowledged that social media is a primary avenue for employees to engage in PCA – this is a big YIKES! Unfortunately, NLRB has looked the other way when employees use profane language or are highly critical of their manager on social media. NLRB has tended to give considerable “leeway” to the employee. See Three D, LLC (Triple Play), 361 NLRB No.31 (2014) case.

            So what should HR do? Well, according to George Patterson an employment attorney with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. employers should have social media and email policies in place. Patterson says these policies should have clauses that clearly outline what activities the NLRB protects and that the company will not interfere in any way with these rights. The policies must spell out precisely which social media activities that are not protected and may subject the employee to discipline, up to and including termination. Those activities are:

·         Disclosure of key proprietary information such as financial, marketing, strategic or other confidential information that does not relate to terms of employment.

·         Threats of violence, bullying, racist comments, or other comments that can create a hostile work environment.

·         Rumors or disparaging statements about the employer that the employee knows are false.

This area is very gray, I hate to say it but I suggest before drafting a social media policy you should seek legal counsel from an experienced Employment/Labor Relations attorney. The NLRB does offer these two points for employers to follow when drafting a social media policy:

·         Company policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law such as the discussion of wages or working conditions among employees.

·         Employee comments on social media are generally not protected if they are mere gripes not made in relation to the group activity among employees.

Gee, thanks NLRB these two points are so helpful!

Social media is a scary area for HR, for better or worse, it is here to stay and will only continue grow and evolve. Our employees will find new ways to push the boundaries forcing the HR professional to stay vigilant. The new board appointments may ameliorate some of the negative aspects in dealing with social media as well as taking our HR stress level down a few points. Make sure that you check your social media policies over or create one if you don’t have one in place. Again, it is highly recommended to have legal counsel help in this process. Make sure all your employees are aware and have acknowledged receiving the policy.  Till next time, thanks for reading!  


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