There has been a lot of discussion in class, blogs, and tweets about the role of social media in screening employees during the hiring process but not as much about the role of social media for employees currently working with a company. For this blog I did a little research about the National Labor Relations Board (NLRB) http://en.wikipedia.org/wiki/National_Labor_Relations_Board and their view on unfair labor practices revolving around social media. I found some of rights protected under the National Labor Relations Act (NLRA) to be a but surprising but here we go…
Technologies are changing and evolving rapidly and the use of social media is becoming ever more prevalent. As a result, the NLRB and private employers have both had to make changes and adapt quickly to keep up with technology. Policies that are only a few years old may no longer be relevant in the over 100 unfair labor practices cases processed by the NLRB since 2010. The NLRA protects online communications between employees about their wages, hours, and working conditions but does not protect mere griping. An example of this is seen in a case where a bartender was fired for complaining on facebook about the tipping policy, which would be protected, had he not called customers “rednecks” and said he hoped they choked. Broad policies may violate the NLRA since employees have the right to communicate among themselves and to the public about employment-related concerns. However, the NLRA realizes that employers need to protect trade secrets and confidential communications so they recommend specific policies.
New issues facing companies and the NLRA include employers controlling employees’ out of work behaviors. Employers are warned that policing workers’ off-duty lives may be dangerous. Some states including California, Illinois, Michigan, and Maryland have already banned employer’s from requesting employees’ social media passwords. Even if it is legal to search for information it may be in the employer’s best interest not to do so. Information obtained about employees’ personal lives such as illness or religion may lead the employee to later believe that information influenced a decision to unlawfully fire that employee and a suit could be filed.
Another issue facing employers, employees, and the NLRB is using social media on company time. Based on a 9/20/12 ruling by a NLRB administrative law judge, EchoStar Technologies LLC needed to change their policy the prohibited employees from using social media on company time. The use of smart phones allows employees to use social media without using the employers’ computers or internet connection. Company time is also difficult to define because social media use could have been done on lunch break or before or after work and this is tough for the employer to determine. Although they can’t fully ban the use of social media at work they can ban using social media for personal matters during company time because personal matters are unrelated to section 7 of the NLRA which protects unionization activities and the rights of non-union employees. EchoStar could also not ban “disparaging” comments on social media based on a Costco case that found that employers could not ban damaging online statements in its employer handbook, also based on section 7.
Laws on social media in the workplace are still playing catch-up with the evolving technology. They are not perfect and need to be looked at on a case by case basis. Laws take months and even years to make and technology seems to be changing every day. It will be interesting to see how these laws do in the race against technology.