• NLRB Flexing Its Pro-Labor Muscles    
  • May 12, 2011 | Author: Nicholas C. Birkenhauer
  • Law Firm: Dressman Benzinger LaVelle psc - Crestview Hills Office
  • Organized labor appeared to suffer a major blow when the last Congress failed to pass the Employee  Free Choice Act (EFCA).  To some, EFCA's demise signaled the end of the modern labor union.  But the National Labor Relations Board (NLRB) is making sure that doesn't happen.  With a majority of its members appointed by the current administration, the NLRB is flexing its muscles in support of organized labor and workers' rights.

    Last fall the board filed a complaint against a Connecticut ambulance service that fired an employee because she had criticized her supervisor on Facebook.  The employee used vulgar language and referred to her supervisor as a "psychiatric patient."  The company terminated the employee for violating its social media policy, which prohibited employees from making any sort of negative comment about the company on social media sites.

    Discussing Working Conditions is Permissable
    The NLRB alleged that the employee's termination was wrongful because she had been engaging in "concerted activity" with her coworkers.  Federal law has long prohibited employers from punishing employees for discussing working conditions or unionization among themselves.  But until now, the right of an employer to prohibit its employees from saying negative things about the company in public - including social media sites - has never been seriously questioned.  In this case, the board took the position that the company's social media policy was "overly broad" because it limited employees' rights to discuss their working conditions with one another, even if the employees made derogatory statements about the company in the process.

    Since the fired employee's coworkers had responded to her statements with supportive comments on her Facebook wall, the NLRB likened the workers' online conversation to more traditional examples of concerted activity.  "This is a fairly straightforward case under the National Labor Relations Act," the board's general counsel told the New York Times last November.  "Whether it takes place on Facebook or at the water cooler, it as employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that."

    Employers Take Note:  NLRB Jurisdiction Covers Non-Union Settings
    All private-sector employers, regardless of whether their employees are represented by a union, should take note of this case.  Many employers do not realize that the NLRB is authorized to enforce workers' rights in non-union workplaces as well as in unionized workplaces.  Under the National Labor Relations ACt, any employer who interferes with employee efforts "to work together to improve their terms and conditions of employment" is subject to enforcement actions and civil fines and penalties.

    Unfortunately, this case may have raised more questions than it answered.  The parties settled in February, so the NLRB id not have the occasion to issue a binding decision in the case.  No one would deny that an employer still has a valid basis for prohibiting its employees from stating outright lies about the company in public.  But where is the line drawn?

    If the case did teach us anything, it's that the board will continue to aggressively enforce worker rights, particularly with regard to employee organization and free speech rights.  The rapid development of social media sites in the past few years already has created considerable workplace problems for employers everywhere.  Employers are now going to have to completely reevaluate their social media polices, both in terms of the content of those policies and in terms of how they enforce them.