Years ago, if you went to parties, the first question after, “What’s your name?” was, “And, what do you do for a living?” Today, it is “Are you on social media?” You are now known on Facebook, Instagram, YouTube, LinkedIn, Twitter or whatever is the latest and greatest Internet site. At the workplace, social media is the new water cooler.
This new workplace reality has not escaped the notice of an 80 year old institution, the National Labor Relations Board (NLRB). Many believe the NLRB only exists to deal with labor-management relations in the unionized arena. After World War II, about 40% of the American workforce was unionized. Today, less than seven percent of American workers are unionized and that number falls to about three percent in Arizona. So, why is the NLRB so interested in social media?
Because the NLRB enforces the National Labor Relations Act (Act) which provides that nonsupervisory employees in the private sector have the right to engage in concerted activities for mutual protection. These protected concerted activities (PCA) for years meant employees organizing for a union to represent them by holding meetings, distributing literature, soliciting union authorization cards and participating in other union campaign events. Today, PCA also encompass employees talking about their wages, hours and working conditions in cyberspace.
In 2011 and 2012, the NLRB’s Acting General Counsel issued three separate memoranda to the public about his position on PCA and social media. The NLRB website endorsed Wal-Mart’s social media policy. PCA has special billing on the Internet at www.nlrb.gov/rights-we-protect/protected-concerted-activity.
A nonsupervisory employee whose employer is covered by the Act (most private sector businesses are covered) goes on Facebook and solicits conversation from other employees about her allegedly mean boss. If the boss finds out, should she fire this employee? Here is where it really pays not to get angry. The boss better analyze (1) whether the Facebook post was protected as posts that violate the Company harassment and violence prevention policies are not protected. For example, an employee of a law firm who reveals a client confidence would not be protected. Then the boss must ascertain (2) whether the post was concerted. If the employee is soliciting conversation from others it may be concerted. If the employee is just complaining, it may not be concerted. Finally, the boss should consider (3) whether what the employee is saying is for the benefit of others and not just herself. Personal gripes are not concerted.
If you are an employer, you should have a social media policy. If you are an employee, you should read and follow your employer’s social media policy. Remember, once it is on the Internet, it is there forever.
Until next time….