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January 18, 2013

HR Fact Friday: NLRB and Facebook

Filed under: Privacy — Tags: , 6:00 am

The National Labor Relations Board (NLRB) is now controlled by appointees of President Obama and is more employee-friendly than often has been the case in the past. This new NLRB has issued a number of opinions for even non-union employers. The NLRB has told employers that employee Facebook communications may well be communications with co-workers protected by the National Labor Relations Act (NLRA). The NLRA protects the right of employees to act in concert (by communications or actions) to address or improve the terms and conditions of their employment.

The NLRB has provided a sample social media handbook policy which it believes is compliant with the NLRA. A copy of this sample policy is found on the NLRB website: http://nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies The NLRB also announced that employer arbitration and class action waiver agreements imposed as a condition of employment violate the NLRA because they limit employee rights to act collectively. Many courts have disagreed with the NLRB on this ruling. Recently, the NLRB also ruled that a policy prohibiting defamatory statements about the company may violate the NLRA if they are written so broadly that they can be construed as prohibiting employee statements criticizing management. Finally, the NLRB has ruled that employer contract disclaimers commonly found in employee handbook acknowledgment forms may violate the NLRA because they could chill employee discussions aimed at improving their working conditions and/or creating a union and thus changing at-will status through a collective bargaining agreement. The bottom line? Non-union employers used to dealing with Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL) now must accept the reality that the NLRB also will be broadly imposing its own regulatory framework on such employers. Learn what the NLRA requires of you and comply!

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