I. INTRODUCTION
The National Labor Relations Board (NLRB) has issued reports to educate employers on their rights and obligations under the National Labor Relations Act (Act). The Act applies to both union and non-union employers, including most banks.
Under Section 7 of the Act, employees have the right to engage in concerted activities for the purpose of collective bargaining or “other mutual aid and protection.” In general, Section 7 of the Act provides employees the right to discuss or act as a group, or to discuss or take action on behalf of a group, to address the terms and conditions of their employment. Employee conduct is “concerted” (and thus protected by law) if it is engaged in by at least one other employee, on behalf of a group of employees, or if one employee is acting alone in the attempt to initiate group action on an issue of terms and conditions of employment.
It is a violation of the Act for employers to take disciplinary action against employees for engaging in concerted activity. In addition, the Act prohibits employers from establishing policies or procedures that would reasonably tend to chill employees in the exercise of their rights under the Act.
A rule or policy that does not expressly restrict protected activity may nonetheless violate Section 7 of the Act if:
A report issued by the NLRB Acting General Counsel, underscores two primary points:
II. EMPLOYER POLICIES
The cases discussed in the new reports indicate that employers should avoid drafting social media policies that are overly broad and could be construed to prohibit protected concerted activity. In addition, it is recommended that employers’ social media policies include a disclaimer that concerted activity is excluded from prohibited communications. The reports included the following examples of employer policies found to be unlawful:
Examples of employer social media policies that withstood NLRB scrutiny include:
III. EMPLOYEE DISCUSSIONS ON SOCIAL MEDIA
When an employee has made disparaging remarks about the employer on a social media site (or otherwise), it is critical to examine the facts and circumstances to determine whether the employee was engaging in protected concerted activity. If the employee is discussing issues concerning terms and conditions of employment with other employees, or on behalf of other employees, then the employee’s communications may be protected by law. If, on the other hand, the employee is expressing gripes or dissatisfactions concerning his or her own work conditions only, such communications will generally not be protected by the Act.
IV. CONCLUSION
Employers should become familiar with the concept of “concerted activity,” review the NLRB Guidance, and consult with legal counsel prior to taking disciplinary action against employees who have posted or otherwise communicated complaints about terms and conditions of their employment.