FEDERAL 2011 Employee Rights Act

NLRB Rights Ruling

Employee Rights Poster

New Notice and Posting Requirements

First, the NLRB has issued a new mandate  requiring most private-sector employers to notify employees of their rights under the 194 page National Labor Relations Act by posting a written notice in the workplace (“Notice”). Employers should begin posting the Notice on November 14, 2011. Copies of the Notice poster will be available on the NLRB website (www.nlrb.gov ) and  from NLRB regional offices by November 1.  Similar postings of workplace rights are required under other federal workplace laws. The new 11-by-17-inch Notice is similar in content and design to a notice of NLRA rights that must be posted by federal contractors under a Department of Labor rule.  The new requirement is quite controversial, given that many feel the proposed language is overtly pro-union and that there is no demonstrated need for the new requirement. 

Translated versions will be available and must be posted at workplaces where at least 20% of employees are not proficient in English.

Employers must also post the Notice on an intranet or an internet site if personnel rules and policies are customarily posted there. Posters are available from the SOGGDA board office or can be downloaded here.

NLRB Attack On Restrictive Social Media Policies

Many companies have fairly broad policies prohibiting employees from doing anything online or on any of the numerous social media sites (Facebook, etc.) which might cause embarrassment to the company.  The NLRB has begun to take a very hard line against such policies in both unionized and union-free companies on the grounds that the policies improperly interfere with an employee’s rights. 

On August 18, 2011, the NLRB's general counsel issued a report detailing the agency's efforts to pursue legal  action against employers which have arguably overly broad social media policies. The report also details unfair labor practice allegations where employees engaged in what the NLRB deems to be “protected concerted activities” in online social media forums.

Some examples of these provisions that were found to be unlawful by the NLRB include prohibitions on:

• "disparaging remarks when discussing the company or supervisors"
• "offensive conduct"
• "rude or discourteous behavior"
• "inappropriate discussions"
• "using any social media that may violate, compromise or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity"
• "communication or post that constitutes embarrassment, harassment, or defamation"
• "statements that lack truthfulness or that might damage the reputation or goodwill of the company”
• "posting anything that [the employees] would not want their supervisor to see or would put their job in jeopardy"
• "use of the employer's logos and photographs of the employer's store, brand or product without written authorization"

The report also details cases where the NLRB has pursued unfair labor practice cases against employers who have terminated employees for engaging in protected, concerted activity online. The online commentary that the NLRB has sought to protect includes examples that many employers would find to be disparaging, profane and disloyal.  

Given the NLRB's position, we suggest that you carefully craft your social media policies and, most importantly, seek legal advice before you discipline or terminate anyone for violating the policies.