I’ll admit something that might seem a little unusual and ironic: I’ve grown a bit tired about writing about the NLRB and social media.
Perhaps, it’s because I’ve seen too many law firms and lawyers issuing newsletters, blog posts, and alerts each time the NLRB says something, anything, about social media.
Because people on social media love WRITING about social media, decisions on the subject keep getting a disproportionate share of coverage. Frankly, it’s like drivers that use their horns too much. After a while, it’s just noise.
With some notable exceptions, what’s missing from the coverage is perspective.
Take the latest decision by the NLRB in the Knauz BMW case this month. Yes, it’s one of the first times the Board (as opposed to an administrative law judge) has upheld the legitimacy of a firing that was based on some inappropriate photos posted by the employee Facebook page.
But that really wasn’t a big issue for the Board because the ALJ’s decision on this topic was affirmed without comment. Indeed, there was nothing to indicate that the Facebook post was “protected and concerted” — i.e. discussing the terms and conditions of employment with co-workers.
As the Workplace Prof blog correctly noted, the Knauz BMW cases is just one of a series of “largely run-of-the-mill concerted and protected cases….”
Of course, as the NLRB has said they would do, the Board has also been issuing decisions that attack what appear to be facially neutral employment policies and finding that these policies violate the employees’ rights to engage in protected activity. (Jon Hyman, of the Ohio Employer’s Law Blog, recaps three of them.) On first glance, this too, has seemed somewhat important to follow.
But its important to recognize that this “trend” is not new. For example, back in 1998 (and in several other cases beforehand as well), the NLRB issued a decision in Lafayette Park Hotel, that attacked bans on “derogatory” statements or policies that prohibited the disclosure of “confidential” information if it prevented employees from discussing wage & benefit information.
The larger view is that the NLRB is doing, unfortunately, what is always does — which is change policies and logic based on which party controls the White House. It has done it before under the Clinton and Bush years, and the latest decisions merely continues that trend.
Should anyone really be surprised that the NLRB’s rulings are reverting back to a perspective that we had under the Clinton White House?
So, where does that leave employers? Resist the urge to act (and overreact) based on each decision or pronouncement from the NLRB. Yes, the law is developing, and yes, its important to make sure that you are compliant with the law, but the overall principles have been in play and in flux for years.
Review your policies. Check to be sure that they’re not so one-sided that they could be interpreted as chilling protected concerted activity. And seek counsel when terminating employees for social media activity.
Ultimately, resist the urge to obsess over each decision from the NLRB. Becuase it just may change again before you know it.