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2011
Employee Rights Act
NLRB Rights Ruling
Employee Rights Poster
New Notice and Posting
Requirements
First, the NLRB has issued a new mandate requiring most private-sector
employers to notify employees of their rights under the 194 page National
Labor Relations Act by posting a written notice in the workplace
(“Notice”). Employers should begin posting the Notice on November 14,
2011. Copies of the Notice poster will be available on the NLRB website (www.nlrb.gov
) and from NLRB regional offices by November 1. Similar postings of
workplace rights are required under other federal workplace laws. The new
11-by-17-inch Notice is similar in content and design to a notice of NLRA
rights that must be posted by federal contractors under a Department of
Labor rule. The new requirement is quite controversial, given that many
feel the proposed language is overtly pro-union and that there is no
demonstrated need for the new requirement.
Translated versions will be available and must be posted at workplaces
where at least 20% of employees are not proficient in English.
Employers must also post the Notice on an intranet or an internet site if
personnel rules and policies are customarily posted there.
NLRB Attack On Restrictive Social Media Policies
Many companies have fairly broad policies prohibiting employees from doing
anything online or on any of the numerous social media sites (Facebook,
etc.) which might cause embarrassment to the company. The NLRB has begun
to take a very hard line against such policies in both unionized and
union-free companies on the grounds that the policies improperly interfere
with an employee’s rights.
On August 18, 2011, the NLRB's general counsel issued a report detailing
the agency's efforts to pursue legal action against employers which have
arguably overly broad social media policies. The report also details
unfair labor practice allegations where employees engaged in what the NLRB
deems to be “protected concerted activities” in online social media
forums.
Some examples of these provisions that were found to be unlawful by the
NLRB include prohibitions on:
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"disparaging remarks
when discussing the company or supervisors"
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"offensive conduct"
·
"rude or discourteous
behavior"
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"inappropriate
discussions"
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"using any social media
that may violate, compromise or disregard the rights and reasonable
expectations as to privacy or confidentiality of any person or entity"
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"communication or post
that constitutes embarrassment, harassment, or defamation"
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"statements that lack
truthfulness or that might damage the reputation or goodwill of the
company”
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"posting anything that
[the employees] would not want their supervisor to see or would put their
job in jeopardy"
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"use of the employer's
logos and photographs of the employer's store, brand or product without
written authorization"
The report also details cases where the NLRB has pursued unfair labor
practice cases against employers who have terminated employees for
engaging in protected, concerted activity online. The online commentary
that the NLRB has sought to protect includes examples that many employers
would find to be disparaging, profane and disloyal.
Given the NLRB's position, we suggest that you carefully craft your social
media policies and, most importantly, seek legal advice before you
discipline or terminate anyone for violating the policies.
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