NLRB Expands Employee Rights

posted by James Becker, Jr.  |  May 9, 2011 07:55 AM [EST]  |  applies to Tennessee

In a significant recent development, the National Labor Relations Board ("NLRB") settled a case it brought against a private employer for having overbroad policies concerning an employee's activity on the Internet.  The National Labor Relations Act ("NLRA") generally protects employees who engage in concerted activity.  This protection has historically been recognized to cover employee actions in addressing workplace issues such as wages, hours of work and working conditions when it is done as a group.  Typically, it was thought to cover the usual 'water cooler' chats employees have and employers knew that they could not prohibit employees from talking about work conditions as a group.  However, the NLRB recently determined that this was expanded by the operation of simple technology.  Perhaps the most significant part of this, however, is that it applies to both unionized and non-unionized employers and employees.

When the NLRA was adopted, the Internet simply did not exist.  Similarly, social networking did not exist and sites such as YouTube, Facebook and Twitter did not exist.  In expanding this coverage, the NLRB  decided that people today spend as much time chatting on the Internet and communicating through YouTube, Facebook and Twitter as they do talking around the watercooler.  Thus, the Board reasoned that the same protections which applied to conversations in the workplace would apply to chats in cyberspace and employer policies which prohibited employee complaints about their work on social networking sites were overbroad and any employee discipline relying on a violation of that policy would subject the employer to discipline for violation of the Act.  This is true, and significant, because typically when an employee is communicating through cyberspace it is done as a solo act.  However, the Board reasoned that since this commucation went to a group and was a form of group communication, it was deserving of the same protection as the more typical workplace conversations and activities.

The lesson to employers and employees from this is clear, but very different.  For an employee this means that you now have a broad new protection when you discuss the issues arising out of your workplace.  For an employer, now is the time to review your policies and make sure you are in compliance before the government or another attorney comes knocking. 

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