Last month Seth Borden wrote a very informative article entitled Labor Disputes Arising Out of Social Media, that explored the unfair labor practice of using social media as a way to monitor union or protected activities. Recognizing that social media continues to transform human interaction, Borden writes, “It is only a matter of time before [The National Relations Board (the Board)] directly addresses labor disputes arising out of the use of these media in the workplace.” In the meantime, Borden suggests that prudent employers consider traditional labor law principles and implement their own workplace social media policies.

Traditionally, an employer commits an unfair labor practice when it engages in the surveillance of union or organized activity, or when it creates the “impression of surveillance” of such activity. See Cannon Elec. Co., 151 NLRB 1465 (1965); Flexsteel Indus. Inc., 311 NLRB 257 (1993). Although the Board in Blue Bell 186 NLRB 712, 722 (1970) found that an employer is free to observe an employee openly and publicly participating in union or other protected activities, at least one administrative law judge found that an employer can create an unlawful “impression of surveillance,” even when it is appropriate for an employer to observe public activities, if the employer suggests to the employee that the employer is regularly monitoring or recording the employees’ protected activity. In Magna Int’l Inc., No. 7-CA-43093, 2001 WL 1603861 (Amchan, A.L.J., March 9, 2001), the administrative law judge held that the supervisor’s visit to the United Automobile, Aerospace and Agricultural Implement Workers of America public website, where he saw a photo of an employee, did not violate the National Labor Relations Act, but that his comment to her the next day that he “liked her picture” did.

When applying these principles to an employee’s use of social media as a way of participating in union or protected activities Boren believes that “a supervisor’s review of anything open to the public on the internet — such as a public Facebook page or Twitter feed — will not constitute unlawful surveillance.” However, even where an employer lawfully reads protected comments on an employee’s social media site, an unlawful “impression of surveillance” may be found if the employer indicates to the employee that the employer is doing so on a regular basis or in a manner likely to reveal the employee’s involvement in union or protected activities.

According to Borden, “The board will likely forge new standards for social media use and other similar developments, patterned on the long-standing Republic Aviation framework, which requires a balancing of employees’ §7 rights with the employer’s legitimate business interests.” However, Borden suggests that employers not wait for a case of first impression. Rather, prudent employers should create and implement workplace social media policies based on traditional labor law principles. It is important to note that the Board itself participates in social media (via Facebook, YouTube, and Twitter).

For more information please read Seth Borden’s article, Labor Disputes Arising Out of Social Media.

Also please see my other articles about workplace social media policies:

• Teachers’ Union Claims School District Social Media Policy Violates First Amendment
• Social(Media)izing at Work
• Companies Need Social Media Policies