A recent complaint issued by a Regional Director of the National Labor Relations Board (“NLRB”) poses a new challenge for employers attempting to control their employees’ use of the Internet. Facebook, LinkedIn, Twitter, blogs, and other Internet postings have grown exponentially in recent years, both at home and at work. Many employers have adopted Internet policies to protect their organizations from disparagement and legal problems arising from employee postings. Those policies need to be carefully reviewed in light of recent developments in federal labor law.
Until now, the NLRB has held that employers have the right to maintain reasonable workplace policies to maintain order in the workplace and avoid liability from employee actions that affect the public. The Board has balanced these employer rights against the right of employees, both union and non-union, to engage in “concerted activity” for their “mutual aid and protection” under the National Labor Relations Act. Under a 2004 case called Lutheran Heritage Village, the NLRB upheld workplace rules limiting public statements by employees, so long as such rules do not explicitly restrict rights to engage in protected activity (such as organizing) and are aimed solely at establishing a “civil and decent work place.” In another case decided in 2007 involving The Register-Guard newspaper, the NLRB upheld against union attack an employer email policy that prohibited "non-job related solicitations."
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