Labor and Employment Law

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
William Patrick Finegan and Barbara Jean D'Aquila

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 the law.

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:

  • Which employers have to comply with the NLRB's posting rule, what information must the posting contain, and what are consequences of failing to post?
  • May employers lawfully post a "counter" notice opposing unionization?
  • What factors make an employee's social media communications "concerted activity" that is protected by traditional labor laws?
  • Is there any social media speech that will never enjoy NLRA protection?
  • What happens when the employees' messages are mixed with protected and non-protected activity?
  • Can an employer ever safely discipline an employee for Facebook and Twitter communications without violating the NLRA?
  • Is there anything an employer may lawfully do to prevent its workplace from going viral in a YouTube video?
  • Setting 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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