Meyer Suozzi's Employment Law Group has prepared the below Employment Law Alert entitled 'NLRB to Vigorously Protect Workers from Employer Retaliation Based on Online Protected Speech' to inform clients of the National Labor Relations Act.
On January 24, 2012, the NLRB's lead attorney issued a memorandum to all regional directors and officers directing them to vigorously enforce the rights of employees to criticize their employers online via social media platforms where such criticism, if uttered in person, would be protected by the National Labor Relations Act. Section 7 of that Act protects the rights of workers to 'engage in...concerted activities for the purpose of...mutual aid or protection' and applies whether or not a workplace is unionized. The National Labor Relations Board has held that an activity is 'concerted' when an employee acts 'with or on the authority of other employees, and not solely on behalf of the employee himself.' The Board applies that principle to online speech among employees.
The January 24 report follows on the heels of a previous report published by the Board in August of 2011. Both reports contain various examples of employee conduct, some of which it found to be protected and others of which it found not to be protected. The January 24th report emphasized that some non-disparagement policies restricting employees from criticizing their employers may be overly broad and unlawful if they restrict employees from exercising their Section 7, NLRA rights. In some cases, the Board found that the employer's policy was overbroad but nonetheless ruled in the employer's favor because the employee's conduct did not fall under the Act's protection. The Board has outlined the extent to which employers can lawfully adopt policies restricting internet communications among employees. Employers would be well advised to carefully consider the protections provided by such policies.
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