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Jumping back into part three of the trifecta, addressing
the impact of social media on the policies and practices of companies, the NLRB
released a report detailing 14 cases from the past year - many of which I
covered in Employment and the Law. I read this report awhile back,
but never got around to writing about it. So, I thought I would include it
In four cases involving employees' use of Facebook, the
Division found that the employees were engaged in "protected concerted
activity" because they were discussing terms and conditions of employment with
fellow employees. In five other cases involving Facebook or Twitter posts, the
Division found that the activity was not protected.
In one case, it was determined that a union engaged in
unlawful coercive conduct when it videotaped interviews with employees at a
nonunion jobsite about their immigration status and posted an edited version on
YouTube and the Local Union's Facebook page.
In five cases, some provisions of employers' social media
policies were found to be unlawfully overly-broad. A final case involved an
employer's lawful policy restricting its employees' contact with the media.
This report is intended to encourage compliance with the
NLRA and assist companies with understanding what is and what is not
permissible under the Act. Each of the highlighted cases is summarized in
approximately two pages, and I think it is a must-read for anyone in human
One recurring theme is that many of these cases turn on
whether the employees' actions were concerted activity.
[T]he Board's test for concerted activity is whether
activity is "engaged in with or on the authority of other employees, and not
solely by and on behalf of the employee himself." Concerted activity also
includes "circumstances where individual employees seek to initiate or to induce
or to prepare for group action" and where individual employees bring "truly
group complaints" to management's attention.
Read more articles on employment law issues
at Employment and the
Law, a blog by Ashley Kasarjian
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