09/29/2011 02:37:00 PM EST
Fulbright Forum – All Employers Beware: The Long Arm of the NLRB – New Employer Posting Requirements and Protection of Employee Communications on Facebook, Twitter and YouTube
The International Law Firm of Fulbright &
Jaworski - Labor and Employment
Patrick Finegan and Barbara
Recent activity of the National Labor Relations Board
(NLRB) reminds non-union employers that the long arm of the National Labor
Relations Act (NLRA) reaches beyond union settings.
Indeed, on August 25, 2011, the NLRB announced a Final
Rule requiring employers to post a notice of employee rights under the NLRA,
which many management groups have claimed is biased in favor of unions. Among
other things, the notice lists the right to organize, to join and form unions,
to join together to complain about working conditions, to bargain collectively,
and to strike and picket. After that list, the "right to choose not to do
any of these activities" is mentioned. The notice also describes unlawful
employer and union conduct. The rule, which is set to take effect in November,
requires that the notice be posted physically in each covered employer's
facilities. Additionally, employers customarily posting notices to employees
regarding personnel rules or policies on an intranet or internet site will be
required to post the notice to those sites as well. The NLRB may treat failure
to post as an unfair labor practice and, in some circumstances, may extend the
normal six month statute of limitations for filing charges and/or regard the
failure to post the notice as proof of unlawful motivation for an alleged
unfair labor practice.
In addition, recent NLRB decisions demonstrate that an
employee's social media communications may be concerted activity under the
NLRA, even in a non-union employment setting. As social media is the latest,
greatest, and loudest bullhorn for employees to broadcast their opinions about
their employers to fellow employees and the world, it is significant when this
activity amounts to concerted activity that enjoys employment protection under
Review the materials from the web seminar held by this
esteemed panel, including an NLRB Regional Director, two extremely experienced
in-house counsel, and a seasoned management labor lawyer, as they debate
pressing questions including:
employers have to comply with the NLRB's posting rule, what information
must the posting contain, and what are consequences of failing to post?
employers lawfully post a "counter" notice opposing
factors make an employee's social media communications "concerted
activity" that is protected by traditional labor laws?
there any social media speech that will never enjoy NLRA protection?
happens when the employees' messages are mixed with protected and
an employer ever safely discipline an employee for Facebook and Twitter
communications without violating the NLRA?
there anything an employer may lawfully do to prevent its workplace from
going viral in a YouTube video?
aside discipline, how can an employer effectively combat the negative
impact of its employees' social media communications about the employer
and the workplace?
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