Arbitration Agreements At-Will Employment Disclaimers Collective Bargaining Employer Investigations
Exclusive Bargaining Representatives National Labor Relations Act National Labor Relations Board Overly Broad Confidentiality Provisions Policies Against Union Insignia Practical Considerations for Employers Protected Activities Representation & Elections Process
Other Petitions & Elections Strikes and Picketing Unfair Labor Practices of Employers Unfair Labor Practices of Unions
Unfair Labor Practice Charges Union Organizing Tactics Unions Home HR Knowledge Central Home
Exclusive Bargaining Representatives National Labor Relations Act National Labor Relations Board Overly Broad Confidentiality Provisions Policies Against Union Insignia Practical Considerations for Employers Protected Activities Representation & Elections Process
Other Petitions & Elections Strikes and Picketing Unfair Labor Practices of Employers Unfair Labor Practices of Unions
Unfair Labor Practice Charges Union Organizing Tactics Unions Home HR Knowledge Central Home
Practical Considerations for Employers
On June 26, 2014, the U.S. Supreme Court issued a decision in the Noel Canning case that may impact the validity of several decisions relating to protected concerted activity in the workplace. In National Labor Relations Board v. Noel Canning, the U.S. Supreme Court held that President Obama’s “recess” appointments to the NLRB were invalid, calling into question any decisions issued by the Board during this time frame.
The NLRB has indicated that it will work to resolve any cases affected by the U.S. Supreme Court’s ruling as expeditiously as possible. In the interim, employers should wait for further information from the NLRB before disregarding any opinions issued while the invalid Board was in place. If you have any questions regarding this decision and how it may impact your workplace, seek advice of counsel.
In light of the cases discussed in this section and OGC reports, an employer should consider the following questions before taking any disciplinary action with respect to a social media post.
Furthermore, employer social media policies should not be so sweeping that they prohibit the discussion of wages or working conditions among employees. The OGC has indicated that specific, robust and appropriately placed Section 7 disclaimers may be useful. Employers should consider specifically including language stating that nothing in the employer’s social media policy is intended to infringe on the rights of employees to discuss wages, hours or working conditions, although this disclaimer may not serve to protect an otherwise unlawful policy. The OGC also indicated that employers should give examples in their policies of conduct that would be prohibited and not run afoul of Section 7.
Consult legal counsel when drafting social media policies. Remember, these protections apply even to non-union workplaces.
The NLRB has indicated that it will work to resolve any cases affected by the U.S. Supreme Court’s ruling as expeditiously as possible. In the interim, employers should wait for further information from the NLRB before disregarding any opinions issued while the invalid Board was in place. If you have any questions regarding this decision and how it may impact your workplace, seek advice of counsel.
In light of the cases discussed in this section and OGC reports, an employer should consider the following questions before taking any disciplinary action with respect to a social media post.
- Does the post address wages or working conditions? Individual comments by an employee unrelated to working conditions would not be protected.
- What is the context? Some individual posts may not appear to be protected, but in the context of a broader employee discussion, could be viewed as protected.
- Does the post trigger an obligation to act? If the post can be properly construed as harassing or contributing to a hostile work environment, the employer may be able to address the issue and attempt to stop the harassment.
- Who is doing the posting? Supervisors are not protected by the NLRA, but they may be protected by other laws (i.e., whistleblower laws).
- What about the employer’s reputation? When an employer thinks about its social media reputation, it tends to focus on what's embarrassing about the post itself. But, employers also should consider the social media ramifications if it disciplines the employee given the intense public interest in social media firings and the resulting NLRB scrutiny.
Furthermore, employer social media policies should not be so sweeping that they prohibit the discussion of wages or working conditions among employees. The OGC has indicated that specific, robust and appropriately placed Section 7 disclaimers may be useful. Employers should consider specifically including language stating that nothing in the employer’s social media policy is intended to infringe on the rights of employees to discuss wages, hours or working conditions, although this disclaimer may not serve to protect an otherwise unlawful policy. The OGC also indicated that employers should give examples in their policies of conduct that would be prohibited and not run afoul of Section 7.
Consult legal counsel when drafting social media policies. Remember, these protections apply even to non-union workplaces.