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NLRB keeps an eye out for employer backlash on workers' social media posts

Posted On: Apr. 13, 2014 12:00 AM CST

NLRB keeps an eye out for employer backlash on workers' social media posts

Unionized and nonunionized employers alike must avoid disciplining workers for any social media postings that touch on general work conditions or risk an adverse ruling from the National Labor Relations Board.

But experts say it's often unclear what social media policy is likely to raise the ire of the agency, which has taken a strong interest in the issue of social media at both unionized and nonunionized employers in an era of declining union membership.

“Given the relatively small and decreasing percentage of unionized employees,” the NLRB's focus on social media is “its way for the board to stay relevant,” said Philip L. Gordon, a shareholder at law firm Littler Mendelson P.C. in Denver.

But observers said there is an ongoing misperception, particularly among smaller companies, that the NLRB's focus remains fixed on unionized companies, when it views its bailiwick as including nonunionized firms.

“It's a much deeper problem than a lot of people realize,” said Steven M. Swirksy, a member of Epstein Becker & Green P.C. in New York.

The NLRB views social media “as the 21st-century water cooler, and is fairly aggressively seeking ways to prevent employers from implementing polices and imposing discipline that the board views as violating employees' right to engage in protected, concerted activity,” Mr. Gordon said.


“It's a serious problem, because the NLRB has concluded that pretty garden-variety policies and restrictions are illegal under the National Labor Relations Act, and it's difficult to know how to draft a social media policy language in a way that protects the company and addresses things like improper disclosure of confidential information, or workplace bullying, precisely enough” without “overstepping the lines as far as the NLRB is concerned,” said Bruce Michael Cross, a partner at Perkins Coie L.L.P. in Seattle.

All companies “need to keep their eyes on that series of decisions coming out of the NLRB” that involve social media, “because we know we're not at the end of the line of cases that we're undoubtedly going to see,” said Ann M. Longmore, New York-based executive vice president of Willis North America Inc. “And the line is beginning to be drawn exceedingly narrowly between what is acceptable and what is not ... and sometimes not in a manner that is predictable.”

“You sometimes will look at two policies that look pretty similar, but the NLRB says one's OK because it's precise enough” and does not violate employees' rights, but then rule “the one right next to it” is too broad and “a reasonable person would interpret it as interfering with employee rights,” Mr. Cross said.

In addition, “some of these cases are moving out of the NLRB tribunal into the civil court system, so it's going to get more expensive” to defend employers' social media policies, Ms. Longmore said.

Another problem is the delay in getting a decision on a particular social media policy, Mr. Cross said. Employees have six months to file a complaint and it can take up to two years to get a decision from the agency, he said.


If the NLRB rules against a company and the worker has been discharged, the firm is obligated to offer employment and compensation for all losses that have been incurred in the meantime, “so it's a pretty big item,” he said.

“The way to avoid the NLRB issue is to be as specific as you can be in your social media policy” about protected vs. unprotected activity, said Scott L. Vernick, a partner at Fox Rothschild L.L.P. in Philadelphia.

Protected social media comments include issues that reflect employee welfare, such as working conditions, wages, a supervisor, staffing and training schedules, said Mr. Vernick.

Mr. Gordon recommended that firms frequently review their social media policies.

“This area is very fluid, very dynamic and is likely going to change over the next several years,” so social media policies should be revisited more frequently than areas where the law is already “pretty well established now and there's not such frequent material changes,” he said.