News & Publications

Social Media Can Cost You Big

By: J. Bruce Cross

Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update

Most people I talk to (probably like many of you reading this commentary) seem to quit listening as soon as they hear or read about the National Labor Relations Act, Labor-Management Relations Act or the National Labor Relations Board.

Admittedly, those laws and their enforcing agency have historically been limited to only those industries that have unionized workforces, such as manufacturing, transportation, contracting and medical. Adding to the lack of interest in the NLRB is the fact that the number of organized workplaces and union memberships has been steadily declining for years. Indeed, the board is facing a decreasingly important role in the protection of employees' rights as modern employers have become much more adept in managing their workforces. But you should stop ignoring the NLRB.  

Here's why:

In November 2011, the board's acting general counsel, Lafe Solomon, issued an operations-management memorandum, or OM, indicating that the board would be monitoring employers' activities as they respond to their employees' use of social media. In its first memorandum, the board gave examples of cases from 2011 in which it found that the employers' social media policy infringed upon their employees' rights under the NLRA.

The board then issued a similar OM in January 2012 with 14 similar case illustrations. In the January memorandum, Solomon called the issue a "hot topic" among employment practitioners. The board issued a third OM on May 30 discussing six new corporate policies that infringe on employees' NLRA rights, this time including new types of policies, such as confidentiality, non-disparagement and third-party communications policies. The NLRB has clearly made corporate policies its platform for revitalizing its relevance in the modern workplace. 

Almost every employee today has access to social media, whether through Facebook, Twitter, LinkedIn, a personal website or blog or even the comments section of an online article, and most employees probably have 24/7 access to those sites via their smartphones. The board considers any discussion involving "terms or conditions of employment" to be protected activity under the NLRA, and social media have made having those discussions instantly possible.

Consider this scenario: Your call-center company recently has experienced a low volume of calls. Out of necessity, you transfer an employee between departments, which upsets the employee. The employee then goes home and posts on Facebook, using expletives, that the company has messed up and that he is done being a good employee. His "friends" (some of whom are also his former co-workers) add comments saying that the company only rewards bad behavior, that the values of honesty, integrity and commitment are foreign to the company. If you decide to discipline that employee, then you will have committed an unfair labor practice as explained by the NLRB in its second operations-management memorandum.

The board does not care if you have a union, and it does not care if you will ever have a union. It will compel you to rehire a fired employee (with full back pay) if it finds that you disciplined that employee under a policy it considers to be overbroad under the NLRA.

In addition, the board can determine that your policies are overbroad under the NLRA even if you have never disciplined an employee under your policy. Such policies are now grounds for an unfair labor practice charge filed with the board even if no employee is ever disciplined under the policy. In fact, the board's third operations-management memorandum found that a policy simply stating that employees could not publish "confidential or proprietary" information to third parties was overbroad under the NLRA.

Gone are the days when a labor strike required a union and picket signs. The odds are that your company and almost everyone else have policies that are overly broad under the NLRB's recent opinions, and the board knows it. Keep ignoring them and you will probably be tweeting #InNeedOfLegalCounsel in the very near future.  

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