Jumping back into part three of the trifecta, addressing the impact of social media on the policies and practices of companies, the NLRB released a report detailing 14 cases from the past year – many of which I covered in Employment and the Law. I read this report awhile back, but never got around to writing about it. So, I thought I would include it here.
In four cases involving employees’ use of Facebook, the Division found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected.
In one case, it was determined that a union engaged in unlawful coercive conduct when it videotaped interviews with employees at a nonunion jobsite about their immigration status and posted an edited version on YouTube and the Local Union’s Facebook page.
In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media.
This report is intended to encourage compliance with the NLRA and assist companies with understanding what is and what is not permissible under the Act. Each of the highlighted cases is summarized in approximately two pages, and I think it is a must-read for anyone in human resources.
One recurring theme is that many of these cases turn on whether the employees’ actions were concerted activity.
[T]he Board’s test for concerted activity is whether activity is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Concerted activity also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring “truly group complaints” to management’s attention.