For a while now, there’s been a lot of chatter about the NLRB’s take on social media and whether employees’ use of Facebook could be “protected concerted activity”. I’ve done many recaps including here and here.
Now, for the first time, an administrative law judge (in Hispanics United of Buffalo) has found that employees’ comments about their working conditions on Facebook could be protected under federal labor laws.
What’s the impact in Connecticut?
Frankly, given the positions staked out by the NLRB, the ALJ’s decision isn’t particularly surprising. For well over a year, the NLRB has been seeking to have an expansive interpretation of what it means to be engaged in “protected concerted activity” and social media just falls within that view.
Remember too, that we have yet to see a full NLRB decision on the topic and have not seen any appeals to federal court either. Nevertheless, this ALJ decision will certainly be used in other cases as precedent.
Employers in Connecticut have long had to worry about the free speech rights of employees. Conn. Gen. Stat. Sec. 31-51q grants private employees some free speech rights. The scope of what that section means is actually the subject of two appeals to the Connecticut Supreme Court that were argued earlier this year.
So for now, employers should continue to be cautious about their reactions to employee use (or misuse) of social media. Not all conduct will be protected (for example, harassing conduct is still illegal), but trying to figure out where the line is between protected and unprotected activities just got a little harder.