Magazine article Workforce Management

Employers Get a #Boost from @Nlrb's Social Media Report: In Several Cases, Posts on Facebook Have Cost Workers Their Jobs

Magazine article Workforce Management

Employers Get a #Boost from @Nlrb's Social Media Report: In Several Cases, Posts on Facebook Have Cost Workers Their Jobs

Article excerpt

With 66 percent of employers reported to be monitoring their employees' online activity, collisions between businesses and employees who use social media websites to comment on their working conditions have become all the more common. In several cases, posts on Facebook have cost workers their jobs.

According to legal experts, the National Labor Relations Board may now have taken an important step toward balancing the rights of employers to protect their reputations and the online speech rights of employees.

Section 7 of the National Labor Relations Act bars employers from interfering with an employee's right "to engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection." Courts have traditionally used two legal standards that date back before the Internet to determine whether employee speech, even if it is "concerted," falls outside the protection of Section 7.

One standard known as "Jefferson" analyzes employee communications to third parties; the other, "Atlantic Steel," focuses on whether communications between employees and supervisors are disruptive to workplace discipline.

But in a recent NLRB report, the board's acting general counsel said that neither standard precisely addressed the case of a worker at an undisclosed popcorn packaging facility who was fired for criticizing a supervisor in a Facebook posting.

In ruling that the posting was protected under Section 7, the board applied a "hybrid" test combining elements of both standards. Among other things, the general counsel noted, "The discussion [between the worker and other employees] occurred at home during non-work hours, and thus was not so disruptive of workplace discipline as to weigh in favor of losing protection under a traditional Atlantic Steel analysis."

Doreen Davis, a partner at the law firm of Morgan, Lewis & Bockius in Philadelphia, says the NLRB "has given employees' conversations on social media much more leeway than conversations at a water cooler. ... It's a really important change in the way the general counsel is going to view this type" of social media post.

The growing popularity of social media, with its uniquely public nature, has presented employers with a unique challenge. …

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