Update on NLRA-protected "Concerted Activity" and Employer "Social Media" Policies
By Jade West
The National Association of Wholesaler-Distributors (NAW) Senior Vice President-Government Relations
As you know, the National Labor Relations Act protects the right of all covered employees, whether or not the employees are represented by a union, to communicate with each other about wages, hours and other terms and conditions of employment; and prohibits employers from interfering with employee participation in this concerted activity. The source of improper employer interference may be a policy or work rule that could be interpreted by employees to prohibit activity protected by the Act.
The use of social media for the conduct of this protected “concerted activity” has been the subject of significant recent NLRB activity.
Yesterday the Board announced the launch of a public webpage that provides examples of the right of employees to take concerted action under the NLRA. The page, at www.nlrb.gov/concerted-activity, contains the Board’s summary of more than a dozen cases that involved employees engaging in alleged protected concerted activity, including the use of social media to discuss wages, hours and other workplace issues.
Also, the Acting General Counsel of the NLRB has released two previous reports on concerted activity and social media policies. On May 30th the acting General Counsel released a third report containing further analysis of employer policies and rules governing topics such as employee use of social media to discuss workplace issues.
This third report also includes one company’s social media policy that counsel believes is, in its entirety, lawful under the Act (pp. 22-24). The report is available here.
Although this report is intended to provide guidance, employers are well advised to consult with their own legal counsel for professional advice when adopting or revising employment policies and work rules.
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