I’m a little tired about writing about social media and labor law. Perhaps you are a little tired about reading about it too.
Unfortunately for us both, expect a lot more about it over the next years because the National Labor Relations Board has social media in its sights and its not letting go anytime soon.
Why am I so confident? Because of what I heard repeatedly at the ABA’s 5th Annual Labor & Employment Law Conference in Seattle earlier this month. Speaker after speaker — including members of the NLRB’s leadership — all indicated that this was an area of undisputed focus for the NLRB.
This is important for two reasons: First, the NLRB takes the position that it can enforce its laws against unionized employers and non-unionized ones too. Thus, an active NLRB is something that all employers need to be concerned about.
Second, the NLRB is going after policies not just actions. In other words, even if the employer is otherwise complying with the law, it may bring actions against employers who have over broad policies that restrict an employee’s right to engaged in protected concerted activities. Of course, the NLRB hasn’t said exactly what language in a policy WILL pass muster so its up to employers to seek legal advice to figure out if their policies are over broad.
But all hope is not lost for employers. One case highlighted by the speakers was decided in the employer’s favor last month. The case involved in a Chicago-area BMW dealer that fired an employee over his Facebook post. But the uncertainty that surrounds this area will continue for some time.
As another speaker joked at the meeting, that may mean lots of work for employment lawyers for myself. But its bad news for employers who just want some certainty.
If you’d like some resource materials, the ABA has posted some sessions online here. I would strongly recommend the program entitled: “Using the Control Key—How Far Can and Should Employer Social Media Policies Go.” Good stuff.