NLRB Launches Website for Nonunion Employees

The National Labor Relations Board (NLRB) launched a website today aimed at educating nonunion employees of their rights under the National Labor Relations Act (NLRA).  The website is titled "Protected Concerted Activity" and can be found at www.nlrb.gov/concerted-activity.  The website highlights that nonunion employees are still afforded protections and rights under NLRB, such as the right to act together to try to improve their pay and working conditions. 

The website provides 13 examples of the type of conduct the NLRB has deemed unlawful under the NLRA and descriptions of the relief granted. All of the examples involve employee discharge or discipline and the NLRB obtaining reinstatement for that employee with full back pay or substantial payments.  Many examples included the use of some form of social media. 

A local example, in Deerfield Beach, involved an employee for a major homebuilder who believed he was improperly denied overtime pay because he and other employees were misclassified as supervisors. The employee wanted to join with the others to file a collective claim with an arbitrator. But the builder said its arbitration policy, which employees were required to sign, only allowed for individual claims. The Board found that the policy was unlawful because it denied the employees their right to engage in concerted activity by filing jointly.

Another example was an employee's termination for posting criticisms of her supervisor on Facebook. After a work-related incident, an employee criticized her supervisor in a post on Facebook, which prompted other employees to reply to the posting. The employee was suspended the next day and later fired. The NLRB issued a complaint alleging the employee was unlawfully fired for engaging in protected concerted activity when she posted on Facebook. Prior to a hearing, the case settled.

Another social media example was the termination of five construction employees who posted a YouTube video about their hazardous working conditions. After the group of employees learned they were building concrete foundations at a former Superfund site, they expressed concerns about handling contaminated soil by posting a video on YouTube. The employer terminated each of the employees shortly after the video was posted. Following an investigation, the NLRB regional office issued a complaint. The case settled shortly thereafter, with the workers receiving full backpay and declining reinstatement.

The NLRB also explains on its website what activity is considered protected concerted activity and encourages employees to contact the nearest NLRB office with any questions.  Clearly, the NLRB is looking to inform non-union employees of their rights and remedies under the NLRB's processes, especially those relating to the use of social media.  Employers should be wary of taking any actions against employees' protected concerted activity, and should consult a labor attorney to review company handbooks and policies on social media and ensure compliance with the NLRB's most recent rulings.