Section 7 of the NLRA states that “employees have a right to self-organization, to form, join or assist labor organizations…and to engage in other concerted activities for the purpose of…mutual aid or protection.” The NLRB has consistently taken the approach that employees who vent on social media are in fact engaging in concerted activity and cannot be fired for doing so. In recent years, the National Labor Relations Board (NLRB) has made several unfriendly decisions for employers. Many employers do not realize that the National Labor Relations Act (NLRA) has any jurisdiction over them believing that the NLRA only applies to union employers. This has always been completely wrong but even more so nowadays.
The NLRB started targeting non-union employers with the social media insurgence. In fact, the NLRB issued three lengthy and contradictory reports about the use of social media and whether it constitutes concerted activity in 2011 and 2012. The NLRA protects employees’ rights to engage in concerted activity to determine if a union is something needed in the workplace.
Recently, the Second Circuit Court of Appeals affirmed the NLRB’s decision that ruled that Facebook “likes” and comments constitute protected activity. Three D, LLC d/b/a Triple Play Sports Bar and Grille v. NLRB. In this Triple Play case, an employee posted a comment about payroll complaining that the owners cannot do payroll correctly and as a result, they owed money to the IRS. The ending comment by the employee was “WTF.” A second employee liked the comment and both employees were terminated. The NLRB ruled that the terminations violated the NLRA. The Court noted that not all social media comments were protected including if comments were sufficiently disloyal or defamatory, but in typical fashion did not provide much more than that in its opinion.
It is best not to terminate an employee for social media comments prior to consulting with legal counsel. It is a very fact specific inquiry as to what is allowed or not allowed. This is a hard pill for employers to swallow when an employee posts negative comments about the employer and then cannot fire them. A wrongful termination though, could lead to huge legal liability.
In another not so friendly decision, the NLRB ruled that Browning-Ferris Industries was a joint employer with Leadpoint, a staffing services company. This overturned decades-old legal precedent. This means that smaller companies that should be considered separate would now be one company for union purposes and could do collective bargaining. There are many business based reasons to use a staffing company including limitations on legal liability but this decision could ameliorate some of those reasons.
The NLRB also ruled recently that an employer’s rule prohibiting recording of company meetings or workplace conversations violated the NLRB. Whole Food Market, Inc., 363 NLRB No. 87 (2015). The Board found that prohibiting recordings means that employees could not act in concert for their mutual aid and protection. The Board stated that not all recordings are protected but rules prohibiting recordings must be narrowly drawn. It is problematic because the Board did not identify how it could be narrowly drawn.
It is important to keep in mind that there are certain states that require two parties to consent to recordings. However, Ohio and Kentucky are both one party consent states meaning that if the employee who is involved in the conversation and doing the recording is “consenting” that is sufficient. It is never lawful for a person to record a conversation to which they are not a party. If you have a no recording policy, it should be reviewed and likely revised based on this ruling.
Employers need to be wary of its policies particularly social media and recordings. What seems to be common sense and needed to protect an employer is not always permitted in today’s pro employee environment.
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