As the trend for social media grows, so does the opportunity for employees to air their grievances (whether just or unjust) for the world to see. As you can imagine, this may cause an issue for an employer.
Elizabeth Townsend and Sasha Ellis, attorneys from Ogletree Deakins, visited the Lovitt & Touché Learning academy to discuss the growing issue of National Labor Relations Board (NLRB) complaints regarding social media and employee handbooks.
The NLRB is concerned with what is, and what is not Protected Concerted Activity (PCA). Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
If an employee takes to Facebook to complain about their boss or their company, is this considered PCA? Well, like most things in life, it depends on the situation.
To clarify, PCA is comparable to the 1st Amendment “Free Speech” right for employees regarding work. For example, PCA can be employees making statements that appear to attack their employer’s reputation or the employees’ supervisor on Facebook and other social media sites, or employees complaining about employer work policies or terms and conditions of employment. However, if the employee(s) engages in reckless or malicious behavior such as threatening or engaging in violence, sabotaging work equipment or lying about a product, an otherwise protected activity may lose its protected status.
If an employee brings an NLRB complaint against an employer, the first thing to do is to contact your attorney. They will help you through the tricky process of responding to the complaint and acting in your best interest.
Just for fun, the presenting attorneys played a game of “Lawful or Unlawful” and gave us several examples of real-life cases to see if we could guess if the activity or situation was against the law. Here are a few examples taken from employee handbooks – you decide… are they Lawful or Unlawful?
- “No defamatory, libelous, slanderous or discriminatory comments about the company, or its customers, employees or management.” Lawful or Unlawful?
- “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of company business.” Lawful or Unlawful?
- “Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online and avoid the use of offensive, derogatory or prejudicial comments.” Lawful or Unlawful?
- “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in discipline.” Lawful or Unlawful?
Here are your answers:
- Unlawful – Why? The reference to “defamation” and potential illegal conduct is not enough. This statement is overbroad because employees would reasonably believe it to ban protected criticism or protests regarding their supervisors, management or the employer in genera..
- Lawful – Why? This rule simply requires employees to be respectful to customers, competitors and the like (with no reference to the company or management). The employees reasonably would not believe that such a rule prohibits protected criticism of the company.
- Unlawful – Why? Bans on “offensive,” “derogatory,” “insulting,” or “embarrassing” comments unreasonably restricts Section 7 rights. In addition, supervisors and managers are also “company employees”.
- Lawful – Why? Although a ban on being “disrespectful” to management typically would violate Section 7 rights, the term here (when read in context) focuses on serious misconduct like insubordination, threats and assault.
As you can see, the rules can be pretty murky. The best thing to do if you have any questions about your handbook, or if you have an NLRB complaint filed against you, is to immediately contact your attorney.
Huge thanks to Elizabeth Townsend and Sasha Ellis for coming out to speak to us about the ins and outs of the NLRB. If you have any questions, please contact your Lovitt & Touché representative.