In our last alert on this subject,1 nonprofit employers were reminded that rapidly developing law in the area of disciplining employees for voicing workplace gripes in social media such as Facebook or Twitter warranted caution before punishment of such behavior, as well as a review of policies that might be found to unlawfully impinge on employee rights under the National Labor Relations Act (“NLRA”). Two recent developments – the issuance of guidance by the Acting General Counsel of the National Labor Relations Board (“NLRB”) and the issuance of the first decision by an administrative law judge finding a violation of the NLRA for Facebook-related firings – provide important additional instruction.
As we indicated in our last alert on this topic, because nonprofits are typically not unionized, they have often overlooked the NLRA as a possible limitation on their right to discipline or terminate employees at will. But nonprofits do so at their peril, as these new developments make clear that nonprofits seeking to enforce work rules or restrain employee criticism of them or their policies in social media must take into account the provisions of the NLRA, regardless of whether the nonprofit is unionized.
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