In the Workplace 2016: Social Media and Right-to-Work Laws
What Will the NLRB Do Next?
It’s not easy these days to predict what the National Labor Relations Board will to do next. But one thing is clear — most employers won’t like it.
For instance, employers using "temporary employees" provided by a staffing agency should be prepared for the NLRB to decide that these "temporary employees" must be allowed to vote in a union election along with the "regular employees," without the consent of both joint employers.
This type of action from the NLRB may make it easier for unions to win elections and would obligate both the principal employer and the staffing agency to bargain with the union about the terms and conditions of employment.
The right-to-work laws may be under attack by the NLRB. In the 25 states (including Arkansas) that have right-to-work laws, bargaining unit employees are not required to be members of the union or pay union dues as a condition of continued employment. In addition, a union may not charge non-members a fee to process their grievances.
Look for the NLRB to seriously consider allowing unions to require non-members to pay a fee for processing a grievance. Such a move away from current law would, no doubt, make organizing in right-to-work states more appealing to unions.
--John D. Davis
Social Media Issues Continue to Affect the Workplace
Anyone who ever thought (or hoped) that social media would be a fleeting trend was proven wrong once again this year. Social media outlets such as Facebook, Twitter, and Instagram are undeniably part of everyday life. For employers, this proliferation of social media presents a unique challenge.
Considering that social media conduct may have an impact an employer’s reputation and an employee’s performance and productivity in the workplace, it is understandable that an employer might want to monitor or regulate the social media activities of applicants and employees.
On the other hand, prospective and current employees have rights to privacy and autonomy outside of the workplace, and these rights have been vigorously protected in recent years by way of legislation, agency rulings, and court decisions regulating and restricting access to employees’ social media accounts.
With no sign of social media use waning in the near future, it is an ideal time for employers to determine how to balance their business interests with employees’ privacy rights in light of the risks associated with monitoring and regulating social media conduct.
As a general practice, employers should avoid any involvement in the social media lives of applicants and employees given the inherent risk of learning information that employers simply do not need to know about their employees, such as disability, pregnancy and involvement in a discrimination lawsuit against another employer.
Furthermore, the Arkansas legislature is one of about 20 in the country to have enacted a law to protect applicants’ and employees’ private information on social media accounts. Employers are thus prohibited under Arkansas law from requiring applicants and employees to disclose usernames and passwords, add current employees as social media contacts, or change an account’s privacy settings.
It is also worth noting that the federal Stored Communications Act prohibits intentional, unauthorized access to electronically stored communications and provides for both civil and criminal penalties in the event of a violation. In other words, employers should steer clear of secretly monitoring their employee’s social media activities.
Even without proactively monitoring employees’ social media activities, an employer may learn that an employee’s poor judgment social media post or video has gone viral. When deciding whether to discipline an employee in connection with his or her social media use, employers should keep in mind that the National Labor Relations Act protects concerted activities by all non-supervisory employees—even non-union employees—and that this protection extends to certain types of work-related discussions conducted on social media sites.
The National Labor Relations Board has in recent years targeted what it considers to be employers’ overreaching regulations of their employees’ use of electronic communications, particularly their use of the Internet for such communications. The NLRB has found violations of the NLRA where an employer’s regulations restricted or prohibited employees from:
- Connecting to each other on social media sites;
- Talking to each other online;
- Disparaging the company, supervisors, or other employees online; and
- Discussing compensation or other terms and conditions of employment.
In fact, the NLRB ruled in a 2014 decision that one employee’s "like" of another employee’s Facebook post criticizing the employer constituted protected concerted activity under the NLRA; thus, the employer’s subsequent termination of both employees violated the NLRA. A federal court of appeals affirmed the NLRB’s ruling in October.
Ultimately, employers should know all the dangers when making decisions about monitoring or regulating their employees’ social media use and disciplining employees in connection with their social media use. Employers should also carefully examine existing social media policies for potential violations of the employment laws.
--Jane A. Kim