Contact Us
Categories
- Emotional Support Animals
- Service Animals
- Employee Agreement
- remote work
- Federal Trade Commission
- LGBTQ
- Minors
- United States Department of Justice ("DOJ")
- work from home
- Arbitration
- Workplace health
- Trade Secrets
- Corporate
- Center for Disease Control
- Americans with Disabilities Act ("ADA")
- FFCRA
- Opioid Epidemic
- Occupational Safety and Health Administration (“OSHA”)
- COVID-19
- Families First Coronavirus Response Act
- H.R.6201
- Health Care Law
- IRS
- Paid Sick Leave
- Temporary Leave
- Treasury
- Coronavirus
- Worker Misclassification
- Labor Law
- Overtime
- Kentucky Unemployment Insurance Commission
- Sexual Harassment
- FMLA Retaliation
- overtime rule
- Employer Wellness Programs
- Genetic Information Nondiscrimination Act ("GINA")
- Kentucky minimum wage
- Minimum wage
- Employee Benefits
- Employment Non-Discrimination Act ("ENDA")
- Human Resource Department
- Independent Contractors
- OSHA
- Paid Time Off ("PTO")
- Sick Employees
- Wage and Hour
- Employee Handbook
- Employee Misconduct
- Employment Discrimination Laws
- ERISA
- Fair Labor Standards Act (FLSA)
- Kentucky Civil Rights Act (“KCRA”)
- National Labor Relations Act (NLRA)
- National Labor Relations Board (NLRB)
- Overtime Pay
- Pregnancy Discrimination Act
- Social Media
- Social Media Policies
- U.S. Department of Labor
- Union
- Young v. UPS
- ADA Amendments Act of 2008 (“ADAAA”)
- Adverse Employment Action
- Americans with Disabilities Act
- Bring Your Own Device
- BYOD
- Civil Rights
- Compliance
- copyright
- Department of Labor ("DOL")
- EEOC
- Employment Law
- Family and Medical Leave Act (“FMLA”)
- Intellectual Property
- Title VII of the 1964 Civil Rights Act
- U.S. Equal Employment Opportunity Commission (“EEOC”)
- Uncategorized
- Volunteer
- Work for Hire
- Amazon
- Department of Health and Human Services
- Federal contractors
- Kentucky Labor Cabinet’s Occupational Safety and Health Program (KOSH)
- Micro-unit
- Portal-to-Portal Act of 1947
- Security Checks
- Security Screening
- Specialty Healthcare & Rehabilitation Center of Mobile
- U.S. Supreme Court
- Cloud
- Creech v. Brown
- EEOC v. Hill Country Farms
- Equal Employment Opportunity Commission v. Kaplan Higher Education Corp.
- Lane v. Franks
- Non-exempt employees
- "Ban-the-box"
- Citizens United v. Federal Election Commission
- Compensatory time off
- Conestoga Woods Specialties v. Sebelius
- Crystalline Silica
- Davis-Bacon and Related Acts
- Drug-Free Workplaces
- Illness and Injury Reports
- Job applications
- Kentucky Department of Workers’ Claims
- Kentucky Wage and Hour Act
- McNamara O’Hara Service Contract Act
- Mine Safety and Health Administration ("MSHA")
- Northwestern
- Permissible Exposure Level ("PEL")
- Sebelius v. Hobby Lobby Stores
- Senate Bill 157
- Shazor v. Prof’l Transit Mgmt.
- Web Content Accessibility Guidelines
- Whistleblower
- WorkSmart Kentucky
- 2013)
- At-will employment
- Berrier v. Bizer
- Bullying
- Chapter 11 Bankruptcy
- Chenzira v. Cincinnati Children’s Hospital Medical Center
- COBRA
- Companionship services
- Consumer Credit Protection Act (“CCPA”)
- Defense of Marriage Act (“DOMA”)
- Earnings
- EEOC v. Fabricut
- EEOC v. The Founders Pavilion
- Ehling v. Monmouth-Ocean Hospital Service Corp.
- Employee of the Month Programs
- Endorsements
- Federal Stored Communications Act (“SCA”)
- Giant Food LLC
- Government employees
- Government shutdown
- Health-Contingent Wellness Programs
- HIPAA
- Home Health Care Workers
- Jury duty
- KYSHRM 2013
- Mandatory vaccination policies
- Maternity Leave
- Medical Exams
- NFL Bullying Scandal
- Obesity
- Online Defamation
- Participatory Wellness Programs
- Payroll
- Pennington v. Wagner’s Pharmacy
- Pension Plans
- Private employers
- Reference checks
- SHRM
- Small Business Administration (SBA)
- United States v. Windsor
- Violence
- Wage garnishment
- Contraceptive Mandate
- Defamation
- Employee Arrests
- Employee Forms
- Employee Hazards
- Employee photographs
- Employee Training
- Employer Group Health Plans
- Employer Mandate
- Employment Practices Liability Insurance
- Federal Workplace Agencies
- FICA
- Form I-9
- Freedom of Speech
- Gatto v. United Airlines and allied Aviation Services
- House Labor and Industry Committee
- KRS 391.170
- Litigation
- Madry v. Gibraltar National Corporation
- Megivern v. Glacier Hills Incorporated
- Motivating Factor
- Online Account Protection
- Patient Protection and Affordable Care Act
- Play or Pay
- posting requirements
- Record Retention
- Religious Employer
- Right to Work Bill
- Sequester
- severance pay
- Social Media Ownership
- Supervisor
- Supplemental Unemployment Compensation Benefits
- Tangible employment actions
- tax refund
- Telecommuting
- Title VII retaliation cases
- Troyer v. T.John.E Productions
- U.S. Citizenship and Immigration Services
- Unfair Labor Practice
- United States v. Quality Stores
- University of Texas Southwestern Medical Center v. Nassar
- Vance v. Ball State University
- White v. Baptist Memorial Health Care Corp.
- Crisis Management
- Job Description
- Job Requirement
- Kentucky’s Whistleblower Act
- Labor and Pensions ("HELP")
- Municipal Liability
- PhoneDog v. Kravitz
- Public Sector Liability
- Social Networking Online Protection Act (SNOP)
- social privacy laws
- Strategic Enforcement Plan (SEP)
- Wilson v. City of Central City
- Workplace Politics
- Class Action Waivers
- Criminal Background Checks
- Employee Performance Reviews
- Employee Personnel Files
- Federal Arbitration Act (FAA)
- Federal Department of Labor
- Hiring and Firing
- Informal Discussion Letter (“EEOC Letter”)
- Kentucky Labor Cabinet
- Retaliation by Association
- Salary Threshold
- Unemployment Benefits
- Workplace Discrimination, Harassment and Retaliation
- Business Insurance
- Communications Decency Act
- Employee Contracts
- Hosanna-Tabor Opinion
- Insurance Coverage
- Internet & Media Law
- Internet Defamation
- National Labor Relations Act
- Non-Compete Agreement
- Uniformed Services Employment and Reemployment Rights Act
- USERRA
Facebook is Not a Picket Line
The National Labor Relations Act protects the rights of employees to connect and address conditions at work, and recent decisions have held that this protection extends to certain work-related conversations on social media.[1] However, it has yet to be determined exactly how far this protection will reach.
The issues and problems attendant with the rapidly-evolving area of social media and its uncontrolled ascent into every aspect of both home and work lives dominate so much of the discussion of workplace issues that one wonders if employers and employees will ever fully adjust to this new connected paradigm. The latest development involving social media and the workplace comes via the D.C. Circuit, which recently considered whether postings made on a union’s Facebook page constitute speech, and potentially illegal coercion, on the part of the union.
In Weigand v. NLRB, a union established a private Facebook page as a method to update union member bus drivers on picket lines and other information during a six-day strike.[2] Tensions ran high during the strike, and several union members posted statements on the Facebook page disparaging those who crossed the line, referring to them as “scabs” and asking where to bring the “Molotov cocktails.”[3] The ability to post on the page was restricted to union members only. A non-union employee filed an unfair labor practice charge with the NLRB, alleging that he had been restrained and coerced, a violation of Section 7 of the National Labor Relations Act. The crux of the employee’s arguments is not that the members posting the comments were acting on behalf of the union, but rather that the union should have been responsible for those postings, deleting and disavowing them.
Weigand v. NLRB is particularly interesting because of how various agencies and entities have attempted to define what social media is, and is not. The NLRB has generally taken the position that social media is a virtual water cooler for purposes of concerted employee activity, and in Weigand, NLRB General Counsel took the position that social media can also be a picket line, with the attendant duties for the union to monitor and control conduct.[4] The D.C. Circuit rejected this idea wholly, citing key differences between a public, physical line of confrontation and a private online forum. The court found that while the union may ultimately be held accountable for the actions of its members in certain picket line circumstances, the actions of members cannot be imputed to the union absent some sort of agency relationship, where the members are working on behalf of the union. The union in Weigand did not support, authorize, or condone the messages posted on the private Facebook page, and the court refused to hold the union accountable for them.
This case suggests that courts will be loath to hold entities accountable for the social media postings of others when the entity merely establishes a forum for conversation and the offending posters do not speak on behalf of that entity. At the same time, both employers and unions should monitor public forums over which they have control, as commentary there may rise to actionable or illegal levels. In other words, it may be better to be generous with the delete function, than to be sorry.
For more information on how the NLRB regards social media conduct in relation to employers, employees and unions, contact the attorneys of McBrayer.
Services may be performed by others.
This article does not constitute legal advice.
[1] See Costco Wholesale Corp., 34-CA-012421 (Sept. 7, 2012); See also Triple Play Sports Bar and Grille, 34-CA-012914, 34-CA-012926 (Aug. 22, 2014).
[2] Charles Weigand v. National Labor Relations Board, No. 14-1024 (D.C. Cir. 2015).
[3] Id. at 6.
[4] Lauren K. Neal, The Virtual Water Cooler and the NLRB: Concerted Activity in the Age of Facebook, 69 Wash. & Lee L. Rev. 1715 (2012), http://scholarlycommons.law.wlu.edu/wlulr/vol69/iss3/8 (last accessed May 4th, 2015).