[author: Tyler M. Paetkau]
Tyler M. Paetkau
The following is a guest blog post by Tyler M. Paetkau, a partner with Hartnett, Smith & Paetkau in Redwood City. Tyler represents employers in all aspects of labor and employment law. He’s a frequent author and speaker on labor and employment law issues, and the former Chair of the Executive Committee of the Labor and Employment Law Section of the State Bar of California.
The workplace has certainly been affected by the explosion of social media. Courts and administrative agencies are grappling with complex issues involving employee personal privacy, harassment, defamation, trade secret misappropriation, and union-organizing efforts in the age of social media. Although the rules are far from clear, there is some guidance for employers out there.
The following are key lessons for employers from the evolving National Labor Relations Act (NLRA) case law and National Labor Relations Board (NLRB) enforcement policy:
Employers should tailor their social media policies so that they don’t restrict or discourage employees’ rights to engage in protected concerted activity.
Having a no “defamatory,” “disparaging,” “disrespectful,” or “disruptive” postings policy may be overbroad and unlawful.
Employer disclaimers (e.g., “this policy is not intended to discourage employees from engaging in protected concerted activities under Section 7 of the NLRA”) won’t save an otherwise overbroad social media policy.
Terminating and otherwise disciplining employees for posting negative, but “protected concerted activity” comments on social media violates the NLRA (Section 8). Protected concerted activity must: (1) relate to work matters, and (2) be on behalf of other employees, and not just personal gripes.
Employer policy prohibiting use of social media for unlawful purposes (e.g., discrimination, gambling, pornography, harassment) is probably enforceable because the NLRA doesn’t protect unlawful conduct.
Employees using social media must comply with all of their employer’s policies, e.g., copyright, trade secrets, EEO, etc.
But there’s a wrinkle on what we can glean from NLRB decisions because many were made by the Board when it contained 2012 recess appointees whose appointments were recently voided by the US Supreme Court on the ground that they exceeded President Obama’s constitutional authority. NLRB v Noel Canning (June 26, 2014, No. 12-1281). This voiding invalidates many NLRB decisions and actions in which the 2012 recess appointees participated.
It’s unclear how the NLRB will proceed as to the many affected matters, but NLRB Chairman Mark Gaston Pearce has issued the following statement:
The Supreme Court has today decided the Noel Canning case. We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated. Today, the National Labor Relations Board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act. The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.
While the Noel Canning case was pending, President Obama nominated five candidates to the NLRB, including two Republicans, which the Senate confirmed in August 2013. Following the Noel Canning decision, on July 18 and July 30, 2014, the NLRB decided to ratify all administrative, personnel, and procurement matters handled by the Board from January 4 through August 5, 2013, and all actions taken by the Regional Directors selected during this void “recess appointments” time period.
The NLRB apparently believes that this ratification will eliminate any questions on the validity of actions undertaken during this time period. But the NLRB’s ratification of decisions may still be challenged in the courts. Employers should stay tuned.
These lessons are from the materials for CEB’s On Demand program Productive Uses and Pitfalls of Social Media in the Workplace, which also include a checklist of issues for social media workplace policies. Explore other areas where social media has had the greatest impact on the legal practice through CEB’s entire Social Media Webinar Series, now available On Demand.
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