11.15.2010
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Updates
Recent news reports that the National Labor Relations Board has accused an employer of violating federal labor law when it discharged an employee for bad-mouthing her boss on her Facebook page is a timely reminder that most employees have extensive protection under federal law, whether or not they are represented by a union.
The National Labor Relations Act protects nonsupervisory employees when they engage in "concerted activities"—activities intended to address workplace issues. This protection applies to all employees, not just those represented by a union. An employer violates the law if it interferes with, restrains or retaliates against individuals engaging in those activities. Unlawful employer actions include such things as maintaining overly broad confidentiality policies, overly restrictive social networking policies or overly broad civility policies. For example, some employers have policies that prohibit employees from discussing their compensation or forbid them from being disrespectful to management. Some employers have policies forbidding employees from saying anything derogatory about the company. For employees protected by federal law, those policies have been found to be unlawful even if they have never in fact been applied to curtail concerted activities.
A few quick pointers:
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When employees are acting in concert about workplace issues, or taking action to benefit coworkers, they are probably protected.
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Employers also have rights, such as the right to preserve their intellectual property and to prohibit unlawful harassment.
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At times, the line between protected and unprotected conduct is murky.
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When adopting employee policies, employers should craft them carefully and avoid overly broad prohibitions.
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Employers should consider having their policies reviewed by a knowledgeable labor lawyer.
The takeaway is that employers must be careful in drafting employee policies—especially those having to do with employee communications and behavior.
© 2010 Perkins Coie LLP
