Eric B. Meyer, a partner in the labor and employment group of the law firm Dilworth Paxson LLP, explains the report’s significance. “It provides a window into what the NLRB considers legal and illegal, not only with respect to employers who discipline employees based solely on social media content that employees publish, but also as to social media policies that employers implement.”
So the report isn’t exactly the law. But it is one of the first detailed explanations about how existing laws are applied to social media policies and practices at work. It gives specific examples of policies, statements and conduct that is and isn’t OK.
Heather Bussing, an independent employment attorney, outlines the advantage the NLRB report provides. “The law is statutes and published decisions by the courts. Agency decisions and regulations are also considered law as long as they’re consistent with the statutes and court decisions. An agency report explaining its thinking and how it has applied statutes and cases to specific situations is about as close to ‘the law’ as you can get. So having a bunch of examples issued lets us have a better picture of what will and won’t get us in trouble, and that is probably even more useful than the law.”
Defining Media and Social Media
One of the interesting aspects of the report is the mention of “employers’ social and general media policies.” Mark Neuberger, with Foley & Lardner LLP, a global law firm representing management in all aspects of labor and employment law, believes the report might suggest they are the same for the purposes of policy development. “The NLRB is concerned with protecting an employee’s right to engage in protected concerted activity, regardless of the medium in which that right is expressed. Before social media, Board case law dealt with expression in verbal speech, written speech and even symbolic speech — the use of inflatable rats being just one example of expressive speech.”
Bussing breaks down for us the definition of “protected concerted activity” and why we need to pay attention to it:
“Criticism of an employer’s practices about wages, hours and working conditions is protected no matter how it is expressed as long as it is ‘protected, concerted activity.’ ‘Protected’ is any statement about wages, hours or working conditions. ‘Concerted’ means the employee’s statements were ‘engaged in with or on the authority of other employees.’ So the statement has to be about working conditions — it can’t be a personal attack that is ‘so disloyal, reckless or maliciously untrue’ that it loses protected status. The statement also has to be directed to other employees or to the company on behalf of the employees — not just personal gripes, honking or wailing. But it doesn’t matter where or how the employee makes the statement if it is also ‘protected’ and ‘concerted.’”
And nowadays, that “where” includes Facebook, Twitter, Google+ and others. Bussing notes, “The report focuses both on where, how and to whom the statements were made. It also explains the limits of the protections — offensive and critical statements that are personal attacks rather than criticism of the wages, hours or working conditions are generally not protected.”
