Many employers with union-free workforces do not realize that the National Labor Relations Act (NLRA), which protects an employee’s ability to engage in union activities and certain other “concerted activities,” also applies to non-union workforces. This common misconception can, and eventually will, prove costly, especially if employers prohibit or limit certain communications by employees.
As most employers know by now, the National Labor Relations Board (NLRB) undertook a significant effort to regulate the social media world in December 2010. On August 18, 2011, the NLRB issued the first of three (to date) memoranda addressing the legality of numerous incidents of employee discipline based on violations of an employer’s social media or other similar policy. The NLRB published a second memorandum on Jan. 24, which provided similar guidance. Many of the cases addressed in these memoranda addressed workplace policies of union-free employers.
In its latest memorandum addressing social media issues, released May 30, the NLRB expanded the scope of its attack to all workplace policies dealing with employee communications. The seven cases discussed in this memorandum addressed social media, electronic communications, non-disparagement, non-violence and confidentiality policies.
In this context, the NLRB reiterated the standard by which it judges the lawfulness of a social media policy under the NLRA: To be unlawful, a work rule does not need to expressly restrict Section 7 activities (e.g., “employees cannot form unions”). Recognizing that most employers have policies that make no mention of Section 7 rights or the NLRA at all, the NLRB pointed out that these policies may nevertheless violate the NLRA if: