It was only a matter of time before the National Labor Relations Board (NLRB) inserted itself into the burgeoning intersection of social media and employment relations. After all, it has its own Twitter account, Facebook page, and YouTube channel.
It recently redesigned its web site to highlight this newly discovered social interactivity.
And, last November it issued its first complaint challenging an employer’s social networking policy as a violation of the National Labor Relations Act’s (NLRA) protections of employees’ concerted activities.
Facebook ‘rant’ case
The NLRB issued a complaint against a company that fired an employee after she posted negative comments about her supervisor on her personal Facebook page. The NLRB not only alleged that the employer illegally fired the employee for the posting, but that the company maintained and enforced an overly broad blogging and Internet posting policy.
An NLRB investigation concluded that the Facebook postings were “protected concerted activity,” and that the company’s blogging and Internet posting policy contained unlawful provisions. One barred employees from making disparaging remarks when discussing the company or supervisors. Another prohibited employees from depicting the company in any way over the Internet without company permission.
“Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity,” the NLRB found.
Misportrayed in the media
Many pundits (including me) were carefully watching this case, hoping the NLRB would provide some guidance on the scope of lawful social media policies. In early February, however, the NLRB dashed those hopes by announcing it had reached a settlement with the employer.
According to the NLRB’s press release:
“Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”
What troubles me about this story is how it has been misportrayed both by the news media and in popular culture.
On the night of the settlement, Cleveland’s NBC affiliate teased its coverage of the story with the following: “Tune in at 11 to find out what you’re allowed to say about your boss on Facebook.”
That misstated the effect of the NLRB’s settlement. Despite this settlement, employees don’t receive a free pass on social media posts.
The NLRA grants employees (unionized or not) the right to engage in protected concerted activity, which includes the right to discuss wages, benefits and other terms and conditions of employment. Neither this case nor any other will give employees carte blanche to trash their employers on Facebook, Twitter, in the press or at a Saturday night cocktail party.
Despite their NLRA rights, employees don’t have license to defame, disparage or otherwise trash their company, management, product or co-workers.
Don’t read too much into this recent foray by the NLRB into the brave new world of social media. Until the NLRB says otherwise, employers shouldn’t treat social media any differently than any other form of employee communications.
