The National Labor Relations Board (NLRB) is back to full-strength for the first time in over a decade, and employers should beware. Here’s why: Based on the past, and current events at the NLRB, it is highly likely the NLRB will re-start its aggressive focus regarding employer limits on social media in the workplace.
First, the Past . . .
The NLRB is a federal agency created in the 1930’s. Generally, it enforces the National Labor Relations Act (NLRA). Most people familiar with the NLRA probably believe that it only pertains to unionized workforces, strikes and union collective bargaining. While the NLRA and NLRB focus on unionization and union activities, there are also portions of the NLRA which apply to non-unionized employers. One of the most common ways the NLRB is involved with union-free workplaces is by enforcing Section 7 of the NLRA, which deals with “protected concerted activity.”
What exactly is protected concerted activity? The NLRB states on its website under protected concerted activity, that: The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.” For more information and explanation of the NLRB and relevant portions of the NLRA, please see my post from May 2012 titled “Employers: Don’t Ignore These Two Acronyms for Social Media Policy Compliance.”
Based on this authority, the NLRB was busy in 2012 analyzing employer social media policies, deciding whether “Facebook firings” were lawful or unlawful, and the NLRB’s Acting General Counsel issued numerous Advice Memos on social media in the workplace. However, on January 25, 2013, in the case Noel Canning v. NLRB, the federal Court Appeals for the D.C. Circuit issued a significant ruling declaring that President Obama violated the U.S. Constitution in 2012 because he improperly appointed three members to the NLRB. As a result, the validity of every single decision rendered by the NLRB in 2012 (approximately 1,000 decisions) is in limbo. A few other federal appellate courts agreed with the Canning decision, and now the U.S. Supreme Court has taken the case, but a decision is not expected until 2014.
Now, the Present . . .
On July 30, 2013, after much bipartisan maneuvering, the United States Senate voted to confirm all five of President Obama’s nominees to the NLRB. Thus, for the first time in a decade, the National Labor Relations Board will have a full complement of Board members confirmed by the Senate. The NLRB will be comprised of two Republicans and three Democrats: Chairman Mark Gaston Pearce (D), Kent Hirozawa (D), Nancy Schiffer (D), Harry I. Johnson, III (R), and Philip A. Miscimarra (R). The NLRB will be fully operational in approximately 30 days.
Next, the Future . . .
Once the new NLRB is up and running, it will first face a backlog of cases that had been languishing since at least January 2013 when the Canning decision was rendered. With this backlog of cases, it is likely the new NLRB will continue to focus on social media issues in the workplace, including policies that the NLRB perceives to unlawfully limit employees’ ability to engage in protected concerted activity via social media (for example, a policy prohibiting employees from using social media to discuss working conditions, or a policy prohibiting employees from using social media to make any “negative” comments about the workplace). The NLRB will also likely re-double its efforts in championing employees who have been “Facebook fired” for posting comments that the NLRB finds to be protected concerted activity. Thus, employers need to add a new category to their lists of “high-risk terminations” to include terminations based on social media activity.
Meanwhile, the Canning case will proceed through the U.S. Supreme Court. Legal briefs in the case are due by December 2013, and oral argument is expected in January, 2014. Then, the Court will likely issue an opinion in late spring 2014. If the Court determines that the NLRB decisions issued by the improperly seated NLRB are invalid, it is not yet clear what the NLRB will do with those cases.
Despite that uncertainty, what is clear is that the NLRB will be revitalized and rejuvenated and employers should be prepared for more Advice Memos and decisions regarding social media in the workplace.
4 Tips for Employers to Prepare For The New NLRB
1. Update/create social media policies. These policies should be as specific as possible, and should not contain a blanket prohibition on employee use of social media, except when the employee is expected to be working.
2. Find ways to protect the company with other policies. Employers still have ways to protect from damage that an employee may cause using social media. For example, most employers have confidential/trade secret information. Employee use/disclosure of truly confidential/trade secret information should be governed by Non-Disclosure Agreements in addition to specific handbook policies. Again, specificity is key: don’t just say “you cannot disclose confidential information.” Instead say something like “you cannot disclose the formulas we use to determine our pricing.”
3. Closely analyze terminations that involve social media. Typically, high-risk terminations involve employees who are in a protected class, for example, employees who have a disability/medical condition, are (or recently were) pregnant, etc. Now, employers would be wise to add to that list terminations that involve an employee’s social media activity. Employees (and the NLRB) argue that they have the “freedom of speech,” and privacy rights, and of course, are allowed to engage in protected concerted activity. Be sure to analyze those issues before termination.
4. Get an employment law attorney involved. Every employer should have handbooks and policies that have been reviewed by an attorney (not just handbooks and policies downloaded from some unknown source, or created by non-attorneys). Additionally, a good employment law attorney can help create other agreements, like Non-Disclosure Agreements, that comply with the current state of the law. And, an attorney can help employers analyze high-risk terminations, and defend employers when they are sued by a former employer, the NLRB or another government agency.
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.