If you’re in leadership for a large organization, you may be bound by the National Labor Relations Act (NLRA), and you may be hearing about the growing concerns around the NLRA and social media.
The NLRA was enacted by Congress in 1935 because companies were growing by leaps and bounds. By the 1950s, about one-third of workers were part of a union. Today, about the same number of public-sector workers belong to a union, and their employers must abide by the NLRA. The National Labor Relations Board (NLRB) was created to enforce the stance of the NLRA, hear disputes, and ensure that employees and employers had a level playing field when it came to bargaining about wages, working conditions and benefits.
While the NLRA has been around for 80 years, only recently has the NLRB gotten involved in disputes involving social media. “Protected and concerted activity” is increasingly taking place over social media channels — that is, activities for which employees may not be penalized. This would include employees having group discussions over social media; criticizing or sharing concerns about compensation or safety issues through written word; and images or videos posted online. With or without a union, employees have a protected right to work together to improve working conditions without losing pay, benefits or being terminated for that activity.
For example, in 2008, Rain City Contractors, based in Lakewood, Washington, terminated five employees after they appeared in a YouTube video. The employees attempted to conceal their identities as they discussed their fears of working at a Superfund site, and the requirement to wear badges that identified them as qualified to work with hazardous materials when they were not. Within days they were fired, and in 2009 the NLRB brought suit against Rain City Contractors, who chose to settle the case and restore all back pay due to the employees.
In another case settled in early 2014, an employee of Hispanics United Buffalo, which provides low-cost services to clients, posted to her personal Facebook page about a co-worker who had criticized other employees for poor job performance. Several other employees responded to the post, defending their performance and sharing frustrations about working conditions, workload and other grievances. The employees were terminated for the Facebook communications, but were later awarded $58,000 in backpay when the NLRB found that the posts were protected and concerted activity under the NLRA.
In addition to harming their reputations, companies who don’t understand the NLRA’s role in social media will be forced to shell out for backpay and penalties. Additionally, they may be required by the NLRB to update social media guidelines and provide training for leadership and staff.
Most organizations have wised up to creating social media guidelines, but they will need to be updated as settled board law is applied to new cases. Leadership at large organizations will also require ongoing training to understand what they can — and cannot — require of employees. Managers may not forbid employees from “friending” one another or communicating with each other through social media, and dictating topics to employees is muddy and dangerous.
If you have questions about your organization’s social media guidelines, or to be added to the advance release list for my forthcoming publication, “The Healthcare Executive’s Guide to Social Media,” which covers NLRA and HIPAA concerns relating to social media, email me at email@example.com.