Those of you who read this Blog are aware that I am not a fan of Social Media. I recognize its role in the Arabian Spring, but recent developments in the National Labor Relations Board 's ("NLRB") treatment of employees' use of Facebook should be reviewed by your HR management.
Two recent actions of the NLRB raise red flags about how you deal with employee Facebook postings about your bank. Recently the NLRB settled a complaint that an employer violated federal labor law by firing an employee who criticized her manager on Facebook.The NLRB has just filed charges against a non-profit providing services to low income persons. The non-profit had discharged several employees who joined in a free wheeling Facebook chat about staffing, work performance and working conditions.
The NLRB alleges that the employer violated the employee "concerted activity" protections of Section 7 of the National Labor Relations Act.
It is important to note that the non-profit was not unionized. Union activiity is not required for Section 7 protection--although that is the historical genesis of the protection. The National Labor Relations Act protects any employee conversations with other employees about their terms and conditions of employment. That means in the eyes of the NLRB an employer cannot discipline an employee who posts Facebook complaints about supervisors or wages or working conditions without risking the NLRB pursuing an action.
In an interview with the State's leading labor lawyer with 40 years of dealing with the NLRB and unions, Robert Tinnin of Albuquerque observed that this area is a "hot topic" among labor lawyers. He observed that these cases are " an indication of how anxious the current General Counsel of the Board is to push the administration's agenda of expanding employee rights." When asked about the use of well drafted policies (many of which can be taken off the Internet), he responded with some skepticism, "the NLRB General Counsel now takes the position that policies which interfere with employees discussing matters relating to wages, hours and other terms and conditions of employment, are protected activity under the Act. For some time now, the Board has held that policies requiring employees to maintain confidentiality of their compensation and not to discuss such matters with others even within the organization are illegal,. The General Counsel views these social media policies in the same vein." Tinnin observed that traditionally there has been a balancing act between discussion of protected activities and employee disloyalty. That appears to be gone.
If you employee activity on Facebook or Twitter in which employees are critical of management or of job conditions your HR department should proceed carefully and seek legal advice.
This is a continuing saga. Banks and bank lawyers will be looking to the labor law gurus to draft policies on social media (in this area of protected social media) which might work. This will be tough under the current NLRB view. I note that nothing in this NLRB focus affects the employer's policies on protection of confidential information or GLBA protected information.
I will keep you advised.
Marshall G. Martin
Comeau, Maldegen, Templeman and Indall
505 983 4611
P.S. On May 26 the NLRB announced another Facebook case, involving a BMW dealership who fired several salesmen for complaining about bad presentations at showrooms and the conditions effect on their sales (which are commission based). Sounds like someone is trying to make a point.
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