Next week I will be speaking at the Atlanta HR Star conference. One of my sessions is about what the NLRB has been up to lately. This could be a several day seminar, as the NLRB has been so activist in its attempts to insert itself into workplaces all over the country, unionized or not. Lucky for the attendees, I do not have that much time. But there have been a couple of doozy’s that have come out in the past couple of weeks that every HR professional should know about.
The context: You probably already know the Board has been crazy busy trying to stay relevant for the 93% of American workplaces that are non-unionized. It added a page to its website on June 18, 2012 dedicated to just that (the “protected concerted activity” page). And it’s been striking down all kinds of seemingly innocuous policies on the grounds that they interfere with employees’ rights to engage in protected concerted activity. It’s hard to keep up with the flurry of activity. (But here’s a great resource if you want to see everything that’s been going on: Ohio Employer’s Law Blog)
Here’s the latest. In Karl Knauz Motors, Inc. the Board held the employer’s “courtesy policy” was unlawful. The policy provided:
Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.
The Board concluded this policy could be reasonably construed by employees as limiting their right to engage in protected concerted activity. Seems like quite a stretch, no? But this is the Board’s position these days.
On a positive note, the Board actually upheld the employer’s termination of an employee based on his social media activity. Yep, that’s right, it ruled for the employer on this issue. The employee had criticized a co-worker for letting the 13-year old son of a customer sit behind the wheel of the car (which ended up in a nearby pond) and posted pictures of the errant vehicle on Facebook. Not protected concerted activity, according to the Board. (Ah, common sense prevails!)
So what’s an employer to do? Pay close attention. Be very careful in reviewing and drafting policies and terminating or disciplining employees based on social media activity. And most importantly, consult with counsel. This area is a mess and even the savviest among us does not know which way the wind will blow. But we can help you make informed decisions.