The National Labor Relations Board is engaging in a “crusade” to protect employees’ social media communications, even among non-unionized populations, according to online human resources service provider XpertHR, which advises employers tread carefully in the brave new world of cyber gripe-venting.
XpertHR says that, even though many companies might not be aware of it, the National Labor Relations Act has always applied to non-unionized workplaces, and the NLRB is on the hunt for workplace policies it finds “chilling,” meaning burdensome or restrictive to protected activities. Even for guild- or union-free businesses, that increasingly includes platforms like Facebook and Twitter.
“The NLRB is aggressively inserting itself in non-union workplaces, scrutinizing and finding overbroad employment handbook policies, including employee conduct (“courtesy”) policies, social media policies and confidentiality policies, unlawful under the NLRA,” says XpertHR legal editor Melissa Gonzalez Boyce. “For instance, the NLRB is on a crusade to categorize certain social media communications as ‘protected concerted activity,’ and it’s important for employers and supervisors who work with both union and non-union employees to be aware of the ever-evolving definition of protected activity.”
A tweet or Facebook status update is often the quickest way for a worker to disseminate a concern, and the NLRB evaluates every single social media post on its own, so employers should plan on doing the same. “Comments” and “Likes” on Facebook can mean that coworkers share an employee’s worries, XpertHR says, making it protected under the NLRA.
“Before disciplining or terminating employees, it is critical that employers and supervisors carefully evaluate each social media post and consider what is said, whom it is said to and if, when and how other employees reacted or commented in order to determine whether the conduct may be protected,” Boyce says.
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