Posted 01-09-2013

NLRB On Social Media Comments By Non-Union Employees: Our Lead Trainer wrote an article last June about the National Labor Relations Board General Counsel’s position paper criticizing many employer’s policies regarding social media comments by employees, and even published guidelines for a good policy. The NLRB’s first two decisions regarding social media in non-union workplaces were issued just in the last four months.

The NLRB ruled last month that comments regarding working conditions posted on Facebook are just as protected as comments made around the “water cooler.” In Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012), five employees were terminated for comments made on Facebook, in response to critical comments about their work by a co-worker, Lydia. Lydia then complained to her employer that she felt harassed by the comments. The employer agreed and fired the five employees. The Board held the terminations were unlawful because the comments concerned working conditions and therefore were protected speech under the National Labor Relations Act, which governs all private sector workplaces, not just union employees. The employees were ordered to be reinstated to their jobs, with all back pay.

In another social media case in September, 2012 the NLRB considered a policy by Costco which prohibited employees from posting damaging or defaming statements about the company or individuals on social networking sites, upon pain of disciplinary action up to and including termination. Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012). Although the administrative judge upheld the policy, the Board overturned his decision and held that employees could reasonably construe Costco’s policy to prohibit NLRA-protected activity, and struck down the policy.

NLRB On Arbitration Provisions: Nor were the two cases above the only forays by the NLRA into the non-union workplace. Early in 2012, in D.R. Horton, 357 NLRB No. 184 (Jan. 3 2012), the Board struck down an employee arbitration provision required of all employees in 20 different states, which required the employee as a condition of employment to agree that an arbitrator could not consider class-wide or collective claims for relief in one proceeding. Each case had to be about one individual. The Board struck that provision down as well, holding that employees who attempt to initiate such claims are engaging in group action and such is protected by the Act.

What this means to you:

Just because there is no union recognized to bargain for your employees does not mean NLRB decisions don’t have serious ramifications for the workplace. Any regulations, policies, handbook provisions, adverse actions, etc., which could have an impact the employees’ right to engage in concerted activity or to comment on their workplace should be reviewed by HR and Legal. As always, the key to avoiding investigations and/or hearings by outside agencies such as the NLRB, is training so your first line supervisors and managers are knowledgeable enough to recognize when to consult the experts!

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.