The WINNER of SHBA's "South Holland Appreciation Days" Raffle!

I am pleased to announce that the Winner of my prize for the South Holland Business Association's South Holland Appreciation Days Raffle for free legal services is Lazette Toney of Harvey, Illinois.  She has chosen the Corporation services.  Ms. Toney is starting a not for profit organization, and needs help getting that off the ground.  I'll be calling to meet with her in the next week or so, and hope to have a photo and perhaps a promotion about her organization in a future entry.

The NLRB and Facebook: What can Employers do about what thier Employees post on socia media sites?

In my last Law Blawg entry, I commented on how the National Labor Relations Board ("NLRB") has weighed in on the issue of how employees can or cannot use social media to disparage their employers.  The news hasn't been necessarily good for Employers. 

Let's set the scene:  A poorly performing employee starts making disparaging, even slanderous remarks about his boss on his Facebook page.  Several of his co-workers jump in (they are the employee's "friends" on Facebook), and post comments, agreeing with the original premise, and adding their own fuel to the fire.  The Employer gets wind of this, and disciplines the employee for violating the company's policy about rude and discourteous behavior.  The NLRB ruled this violated the National Labor Relations Act ("NLRA").  


How is this so?  Behavior offensive to company policy is protected when its broadcast to the world over the internet?  What is going on?

All Employers, even those who don't have union employees, need to understand how the NLRA applies to them. In my last post, I explained the threshold requirements for determining whether an Employer is subject to the act.   Generally, if your business has employees, and the volume of your business is over $50,000.00, the NLRA governs your business.  Even if your employees are not in a union. 

Once an Employer knows the NLRA applies, they need to understand its limitations.  Section 7 of the NLRA protects employees who engage in “concerted activity” for their “mutual aid and protection.” Usually, protected concerted activity ("PCA") is defined as activity that is “engaged in with or on the authority of other employees” That means activity that extends beyond behavior that is done by and on behalf of an individual employee. PCA may also be found when it is the “logical outgrowth of concerns expressed by the employees collectively.”

Last month, the NLRB’s Acting General Counsel issued a report summarizing the NLRB’s recent social media decisions.The NLRB’s Division of Advice indicated that the following situations did not qualify for protection as PCA under Section 7 of the Act:

• A bartender had a Facebook conversation with his stepsister in which he complained that he had not had a raise in five years and did the job of a server without receiving tips. The conversation also contained rude comments about customers. No co-worker responded to the comments.
• A recovery specialist at a non-profit residential facility for homeless people had a Facebook conversation while at work with two non-employee friends. She posted comments about how the overnight shift was “spooky” and made jokes about the clients. No co-worker responded to the posts.
• A customer service employee at a large retail store posted disparaging remarks about her manager and later added a profane rant about the incident that precipitated the original post on Facebook. Co-workers responded only with “hang in there”-type remarks.

These cases suggest that online personal attacks or unprofessional online remarks that are posted generally, sent to non-employees, and where there is no evidence of any "group action" or concerted employee activity will not fall under the protection of the NLRA.

On the other hand, the Acting General Counsel’s report discussed several situations the NLRB found to be PCA, including the following:

• An employee’s negative Facebook post about her supervisor that drew supportive comments from co-workers and led to further negative comments by the employee.
• A former employee posted dissatisfaction that she owed state taxes because of her employer’s tax withholding policy and inability to do paperwork correctly. One employee clicked “Like” and other employees asserted they also owed money and intended to discuss it at a meeting.

These situations, when contrasted to the three where the NLRB did not find PCA, indicate trends that can help Employers successfully deal with employee social media activity.  An individual employee, griping about his job is obviously not "concerted" activity. Also, the content of co-worker response through additional online comments or other indications of support could tip the scales. A fellow employee whose comment only amounts to affirmation might not constitute PCA, but a call to collective action ("let's work together to deal with this") probably is.  


What can Employers do to deal with this issue, or to head it off before it becomes a problem?  I am an advocate for encouraging my Employer clients to establish clear, objective, written policies to indicate what they expect from Employees.  However, a work rule or policy will violate the NLRA if the rule restrains or explicitly restricts employees from exercising their rights under the NLRA, including their right to engage in PCA. A rule is unlawful if (1) employees would reasonably construe the language to prohibit (or “chill”) the exercise of their rights under the NLRA, (2) the rule was promulgated in response to union activity, or (3) the rule has been applied to restrict the exercise of the employees’ rights under the NLRA.

The NLRB report discussed several examples of social media policies that violated the NLRA. Specifically, the following social media policies were unlawful:

• Prohibiting employees from making “disparaging comments” or engaging in “inappropriate discussions” about the company, superiors or co-workers.
• Prohibiting employees from posting pictures of themselves which depict the company in any way
• Prohibiting “offensive conduct” and “rude and discourteous behavior” in a broad manner, without limiting language that would remove the rule’s ambiguity with regard to PCA. In general, the NLRB finds that broad prohibitions reasonably tend to chill the exercise of employee rights under the NLRA.

Employers therefore must be extremely careful when drafting and enforcing social media policies. Even if you have a non-union shop, you need to carefully consider and review your social media policies.  According to the NLRB, employees have the right to discuss terms or conditions of employment and workplace concerns. Will your policy tend to restrict this? If so, it needs revision. In addition, it appears that this kind of social media activity by employees must be analyzed on a case-by-case basis with an eye towards the audience and the content of supportive comments. If your not sure what to do or how to analyze the facts in light of the NLRA's restrictions, please consult your attorney. A knowledgeable employment lawyer can help you draft effective policies, and enforce them with less risk of a violation.

The NLRB's New Posting Requirements -- if You're an Employer, You Need to Read This!

The National Labor Relations Board ("NLRB") recently issued a new rule (See Notification of Employee Rights Under the National Labor Relations Act, 76 Fed. Reg. 54,006 (Aug. 30, 2011) (to be codified at 29 C.F.R. §§ 104.201et seq.)) requiring most private sector employers to post a notice informing employees of their rights under the National Labor Relations Act ("NLRA"). The rule becomes effective November 14, 2011.

This new rule mandates particular language to be included in this required notice, including information about employees' rights to form, join, or assist a union; to bargain collectively; to join in other concerted activities; and to refrain from such activities. Employers must display this notice in the form of an 11-by-17-inch poster in all places where other personnel notices are typically posted.  If the Employer has a system for communicating with employees about personnel rules or policies on intranet or internet sites this notice must also be included on those sites. The particular content of the notice is mandated by the rule.  If 20 percent or more of an employer's workforce is not proficient in English, the notice must be posted in their foreign language. Copies of the official notice will be available from NLRB regional offices and from the NLRB website at www.nlrb.gov.

But don't assume that because your workforce is not unionized that this new requirement does not apply. The rule applies to all employers subject to the NLRA.  Who is subject to the NLRA? Odds are if you have a business with employees and have any volume of business, the NLRA governs your relationship with your employees. The NLRA covers most private sector employers that engage in interstate commerce above certain minimal financial levels. In certain specific instances, the NLRB contains revenue-based jurisdictional limits that are different for particular business types or industries. For example, if your in the business of running an office building or shopping center, the threshold limit is $100,000 in revenue; for law firms, the threshold is $250,000; for private schools, the threshold is $1 million (which is the highest revenue limit listed in the jurisdictional standards). If your business is not specifically listed, the default threshold is $50,000.  (There are certain categories of business that are subject to the NLRA regardless of revenue levels.  These include many financial based businesses, such as financial information organizations, accounting firms, and stock brokerage firms).  Thus, your business may be covered, and you never knew it.

Note:  If you are a federal contractor or subcontractor, and already follow regulations applicable to your industry to post notices informing employees of their rights under the NLRA, you are already in compliance with the new rule.

This new posting will stir up a great deal of controversy, particularly for smaller businesses that have never dreamed of dealing with the implications of NLRA rights in non-unionized settings. The posting will specifically inform employees that they have the right to discuss their wages, benefits and other terms and conditions of employment with co-workers and the right to take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints. It will also inform employees that an employer cannot legally terminate, discipline or take other adverse action against employees who exercise these rights.

An Employer who fails to follow this new requirement could be charged with interfering with employee rights under the NLRA.  Even if the employee has done nothing else to violate the NLRA, this could be the basis for an unfair labor practice charge. Usually the penalty for failure to follow NLRB posting requirements is minor, as long as the missing poster is the only violation.  However, considering the new found slant in favor of unionization by the Obama Administration's appointees to the NLRB, such a violation will certainly result in a further investigation, and the potential for finding allegations of other unfair labor practices.  This could be significant, as the violation of the posting rule could toll the six-month statute of limitations that ordinarily applies to charges of NLRA violations. Also, because Employers cannot retaliate against any employee for filing a charge with the NLRB or offering evidence concerning an alleged violation of the Act, an Employer's violation of this new requirement could be cleverly used by employees who anticipate disciplinary action or termination to gain protected status under the Act. This is because, once an employee files a charge, the employee could claim that any adverse action that followed was illegal retaliation.

Therefore, Employers with non-unionized workplaces should be careful to follow this new regulation. The NLRB has been especially active in recent months in bringing unfair labor practice enforcement actions against non-unionized Employers for disciplining employees or adopting policies which purport to limit what the NLRA defines as "concerted activity." For example, the NLRB's Office of General Counsel recently published notice of the Board's rulings on several cases involving social websites, where Management's social media policies or disciplinary actions against what employees were posting on Facebook or Twitter were deemed improper.  The Board came to some shocking conclusions regarding how commentary by a group of employees on another employee's Facebook site transformed into "concerted activity," and were protected activities under the NLRA. (I plan to comment on this issue in my next Blog entry). 


This new poster requirement adds to all the current, existing notice requirements Employers must follow.  For example, the Fair Labor Standards Act, the Family and Medical Leave Act, federal anti-discrimination statutes, and federal workplace safety statutes all have their own mandatory posting requirements. Besides federal posting requirements, Employers are subject to state and local requirements, such as the Illinois minimum wage.  Employers should use this new requirement to make sure they are also posting all the employee notices required by law.