National Labor Relations Board has brought at least four complaints alleging businesses violated labor laws that protect employees from retaliation for office chatter
It's easy to understand why no business would want employees griping about working conditions on Facebook. Yet, employers are getting into trouble for regulating social media activity.
In the past year, the National Labor Relations Board has brought at least four complaints alleging that businesses have violated labor laws that protect employees from retaliation for office chatter. One of its cases is against a BMW auto dealership in the Chicago area.
The federal scrutiny has alarmed many businesses, including nonunion employers, because the National Labor Relations Act covers most private-sector employees. As a result, businesses are carefully navigating the intersection of traditional labor law and the relatively new social media environment.
"This is clearly an area of focus and interest," said Aaron Gelb, an attorney at Chicago law firm Vedder Price, who represents employers in labor disputes. "Until employers recognize what the issues are, everybody is going to be feeling their way around."
The uncertainty about the legal standards for social media prompted the NLRB's acting general counsel last month to release a report detailing the outcome of investigations into 14 charges of unfair labor practices involving social media. The 14 cases are a representative sample of the more than 100 charges that have been filed with the labor board in the past year. The most common issues deal with policies that restrict use of social media or alleged unlawful disciplinary actions, including termination, over the contents of online posts.
The memo attempts to explain why the NLRB prosecuted certain charges and dismissed others. As Lafe Solomon, acting general counsel, said in the memo, "I hope that this report will be of assistance to practitioners and human resource professionals."
What legal experts took away from the report is that the NLRB is basically taking well-established workplace rules and applying them to a different form of communication. Although it's easy for employers to fire a worker in most states, employees have long enjoyed the right to come together to improve their working conditions. This freedom of association is known as "protected concerted activity" in legal terms.
But yesterday's water cooler talk is not the same as broadcasting disparaging comments on Facebook that could reach millions of people. Employers are concerned that workers are defaming the company online.
National labor law does not preclude employers from disciplining employees for inappropriate online behavior. But from the NLRB's perspective, said Jeff Hirsch, an associate law professor at the University of North Carolina School of Law who focuses on employment law, "the key issue is whether employees are acting together out of concern for their working conditions. The fact that others may also hear it isn't directly relevant."
The NLRB's position on social media has not been tested in the courts, and that has some corporate defense attorneys wondering if the report provides much of a guide in developing social media policies.
"I'm waiting to see is there's going to be an employer that fights the NLRB," Gelb said.
A complaint against Karl Knauz BMW in Lake Bluff might be a test case. Last year, the dealership fired a salesman after he posted on his Facebook page that he was miffed that management served bargain-brand hot dogs and bottled water to customers at an event promoting a new car model.
The salesman, Robert Becker, filed an unfair labor practice charge with the NLRB. After investigating his allegations, the NLRB's regional office in Chicago brought a complaint in May on Becker's behalf, arguing that Knauz violated federal labor law by firing him.
The case was detailed in last month's 24-page NLRB report. The office of the general counsel concluded that Becker's Facebook photographs and comments were "clearly concerted." According to the report, before Becker went online, he and other salespeople had expressed concerns that the pedestrian food and beverage would send the wrong message to customers and negatively affect their sales and commissions.
The case was presented to an administrative law judge in July, and a ruling is pending.
James Hendricks, the dealership's attorney, is upset the NLRB discussed his case and the agency's legal theory in the report before the judge has issued a ruling.
"The general counsel's office rendered an opinion about how they found my client guilty, but there has been no finding of guilt," Hendricks said. "That's totally inappropriate."
Nancy Cleeland, an NLRB spokeswoman, said the agency did not act inappropriately because the complaint is a matter of public record.
"The information in the report is also contained in the complaint, and it's also in a press release we put out at the time the complaint was issued," she said. ..Source.. by Ameet Sachdev's Chicago Law
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