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USA: "Global Insights - US Chapter 11 and Mexican Insolvency Proceeding Compared" report. 32-page report by Baker & McKenzie.
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backAMERItalk March, 2012
Attention Non-Unionized Employers: Does Your Social Media Policy Violate the NLRA? Top 10 Lessons from the NLRB in 2011
With the explosion of social media use in the workplace, the National Labor Relations Board (NLRB) is actively scrutinizing employer social media policies and considering to what extent employees’ online postings fall under National Labor Relations Act protection. Section 7 of the NLRA protects employees (in both unionized and non-unionized workplaces) who engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Employers are prohibited from taking any action that might “chill” an employee’s ability to engage in protected concerted activities, even if only as few as two employees are involved.
In 2011, the NLRB’s Acting General Counsel – who decides which unfair labor practice charges to prosecute against employers – released a report summarizing many of the social media cases he (or his staff in the Division of Advice) have addressed over the last year. NLRB Administrative Law Judges also issued the first two decisions analyzing whether employees’ online postings were protected under the NLRA. A review of NLRB activities in 2011 provides useful guidance to employers attempting to ensure their social media policies appropriately balance employee rights and company interests.
1. Prohibitions on employee discussions about the company should be narrowly tailored
The majority of allegations before the General Counsel assert that an employer’s rule or policy restricts discussions permitted by the NLRA. In Lutheran Heritage Village-Livonia, the NLRB outlined a two-step approach to determine whether an employer's policy violates the NLRA. First, if the policy explicitly restricts protected activity, it is unlawful. Second, even if the policy does not explicitly restrict protected activity, it still is unlawful if: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the policy is applied to restrict the exercise of Section 7 rights. The General Counsel applies this same analysis to determine the validity of social media policies.
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Source: Baker & McKenzie - GAI
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