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NLRB Judge Issues First Ever Ruling in Social Media Line of Cases

On May 19, 2011, we reported that the National Labor Relations Board (NLRB) had filed a complaint against Hispanics United of Buffalo, Inc., a non-profit social services agency. Unlike previous NLRB complaints regarding employers’ social media policies, all of which the NLRB had settled confidentially, the Hispanics United complaint proceeded to a three-day trial.

On September 6, 2011, an Administrative Law Judge (ALJ) ruled that the agency violated the National Labor Relations Act (NLRA) when it terminated five employees for griping after-hours on Facebook about their jobs, one of their managers, and some of their more challenging social service clients. Although the employees’ gripes, which included one employee’s complaint that a coworker didn’t feel she was working hard enough and another employee’s commiseration that she didn’t “have a life,” seem innocuous enough, the ALJ noted that even “[e]xplicit or implicit criticism by a coworker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by” the NLRA. “Employees have a protected right to discuss matters affecting their employment amongst themselves,” and it was “irrelevant … that the [employees] were not trying to change their working conditions and that they did not communicate their concerns to” Hispanics United. The agency was ordered to reinstate the fired employees with full backpay. Hispanics United will likely appeal.

Employers - including non-unionized employers - should be mindful of the NLRB’s push to extend NLRA protection to employees’ social media discussions. Employers should ensure that their social media and internet policies do not facially violate the NLRA by prohibiting employee discussions of working conditions. And, while employers can still prohibit misuse of social media - including for the dissemination of trade secrets or confidential and proprietary information, trade libel, defamation, or harassment - employers must scrupulously avoid violating the NLRA by disciplining employees for legitimate, online discussions of working conditions.

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As the U.S. labor market continues to evolve over the coming decades, adapting to three major trends will be vital for employers. First, changing workforce demographics, size and focus will become a key issue in the provision of professional services – particularly as the baby boom generation continues to age. Second, increasing globalization means that national borders will become a greater challenge for companies to manage, in terms of both their immigration and international commerce requirements. Lastly, the rapid pace of technological change will continue to...