NLRB Breathes New Life Into Federal Labor Law; Are You Ready?

May 5, 2011
Employers need to ensure workplace policies comply with the NLRA and should incorporate NLRA compliance into their management training and self-auditing programs.

By now, everyone knows discrimination and harassment are illegal in the workplace. But how many know that employees have the right to engage in protected, concerted activities "for the purpose of... mutual aid or protection?" How many know that employers interfering with that right might violate the National Labor Relations Act (NLRA)?

Similarly, while almost everyone knows to bring discrimination and harassment claims to the Equal Employment Opportunity Commission (EEOC) or (in Connecticut) the Commission on Human Rights and Opportunities (CHRO), most people probably don't know what type of claims the National Labor Relations Board (NLRB) handles, if they even know it exists!

The NLRB is proposing to change this by requiring virtually all workplaces to post an 11" by 17" notice about employee rights under the NLRA. This rule follows closely on the heels of a nationally featured story involving a "Facebook Firing" which showcased the broad reach of the NLRA and the impact it may have on both unionized and union-free workplaces. The message is clear: employee-rights advocates are bringing greater attention to the NLRA and its little-known but substantial employee protections.

"Facebook Firing" Shows NLRA's Reach

The story, which began making headlines this past November, was that of Dawnmarie Souza, who was fired for referring to her supervisor at American Medical Response as (among other things) a "dick" and a "scumbag" in Facebook posts. Like many individuals fired for their off-duty, on-line conduct, Ms. Souza brought claims against her former employer alleging her free-speech and privacy rights were violated. While many similar claims have been raised (almost always without success), there are two unique features to Ms. Souza's case.

First, instead of filing suit in court, Ms. Souza, filed an Unfair Labor Practice Charge filed before the Hartford Regional Office (Region 34) of the National Labor Relations Board (NLRB). Thus, this case challenged a social media policy directly under the NLRA.

Second, Region 34 issued a "Complaint," alleging the Company violated the NLRA by adopting a "Blogging and Internet Posting Policy" that prohibited employees from "making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors." A Complaint is a formal allegation by a Regional Office and puts a case on track for a formal decision which may be appealed to the NLRB in Washington, D.C. Although Ms. Souza's case recently settled, the issuance of a Complaint demonstrated the broad, modern-day applicability of the 75-year-old NLRA.

The NLRA and Employees' Speech

As mentioned, the NLRA gives employees the right to talk to one another about their wages and other working conditions. Such work-related dialogue is considered protected, concerted activity under the NLRA. The NLRB and courts have construed protected, concerted activity fairly liberally, even construing a single employee's activities on behalf of others as "concerted." Thus, while many often think of the NLRA as only dealing with unions, in many ways, it acts as an extension of First Amendment protections and freedoms (specifically, speech and assembly) to private sector employees.

The NLRA and Social Media Policies

In 2009, the NLRB's General Counsel (the agency's chief prosecutor and legal advisor) issued an "Advice Memorandum," addressing the legality of social media policies under the NLRA. The Advice Memorandum provided the following analytical framework for determining whether a given policy infringes on employees' rights:

If [a policy] does not explicitly restrict protected activities, it will only violate [the NLRA] upon a showing that: (1) employees would reasonably construe the language to prohibit [protected, concerted] activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of [protected concerted activity].

The Advice Memorandum (issued under the supervision of a Republican General Counsel) is fairly pro-employer because it allows employers to impose reasonable restrictions on employees' damaging on-line publications. However, the Advice Memorandum is not binding authority. Moreover, the NLRB now has a Democratic majority and a Democratic General Counsel.

Proposed NLRB Rule Heightens Employee Awareness

While Region 34's Complaint in the Souza case sought to broaden employees' rights, the NLRB's proposed Notice seeks to enhance employees' awareness of NLRA rights and of the assistance available from the NLRB. The proposed Notice would advise employees of their NLRA rights, including,

  1. the right to "organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment;"
  2. the right to "form, join or assist a union;"
  3. the right to "discuss your terms and conditions of employment or union organizing with your co-workers or a union;" and
  4. the right to "take action with one or more co-workers to improve your working conditions by... seeking help from a union."

The proposed notice further lists seven examples of activities in which it is illegal for employers to engage. The poster also provides the NLRB's contact information and directs employees to promptly call the NLRB's 800-number if they feel their rights (or their coworkers' rights) have been violated.

If the rule becomes final, the notice will likely achieve its intended purpose of heightening employee awareness with regard to NLRA rights. It is also possible employees will heed the invitation to contact the NLRB with all kinds of complaints. In recent years, while the number of EEOC Charges has been approaching 100,000, the number of Unfair Labor Practice Charges (ULPs) before the NLRB has been around 22,000. That number could significantly increase if this rule becomes final.

What This All Means

Following the Souza case, employees and unions are sure to use the NLRA to attack employers' social media policies. In fact, three days after Ms. Souza's case settled, a similar case was filed in the same Region. Thus, employers who fail to consider the implications of the NLRA may face a ULP before an unsympathetic NLRB. Moreover, if the NLRB's proposed rule becomes final, employees will be primed to file such ULPs.

As more attention is focused on the NLRA, employers need to ensure workplace policies comply with the NLRA and should incorporate NLRA compliance into their management training and self-auditing programs.

Robert G. Brody is the founder of Brody and Associates, LLC, and Sami Asaad is an associate with the Firm. Brody and Associates, LLC represents management in employment and labor law matters and has offices in Westport and New York City.

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