While preparing for my upcoming social media & law presentation (see below for details), I was reading through one of the most recent National Labor Relations Board (NLRB) decisions regarding social media & labor law (Kroger, 07–CA–098566, 4/22/14). After reading this decision & other NLRB stuff, it strikes me that the NLRB is really out of touch with today’s workplace.
In this decision, which is just one of an increasingly long line of confusing & sometimes incomprehensible NLRB social media guidance & decisions, an NLRB ALJ (administrative law judge), invalidated Kroger’s attempts at protecting & managing it’s online content & reputation. And, just to spice things up, the ALJ even rejected & accepted his own NLRB General Counsel’s advice in the same decision.
Consider this:
“As the General Counsel [of the NLRB] has recognized in related circumstances, the appropriate analogy for online communications is the water cooler at work . . . . Simply put, unless an employee is actively seeking to give the appearance of speaking on behalf of an employer—it is unlikely in the extreme that an employee’s online communications and postings will be mistaken for an authorized communication of the employer.” (P. 11, Ll. 5-10)
These statements & this analogy are wrong. In 2014, the whole concept of the “water cooler” being the workplace hangout is antiquated as it was in 1998 when that same concept was parodied as being out of date in the Seinfeld finale. If you don’t believe me, then reflect & click on the infinite wisdom of George Costanza.
It’s ridiculous to compare one venue that serves only a few people at a time to social media which serves millions simultaneously. And, who is the NLRB to say that any hundreds of thousands of people won’t confuse one pissed off employee’s message with that of the entire company? It’s not realistic to compare a few people talking around a water cooler, that occasionally burps out loud, to the internet.
Oddly enough, in the same Kroger decision the ALJ says that an opinion from the NLRB’s own General Counsel is “without precedential value.” P. 12, L. 30. This statement was in regard to requiring employees to disclaim their Kroger-related social media postings. Unfortunately, this bit of GC guidance would have helped Kroger out because it required that employees post a disclaimer on all social media postings related to Kroger & where the employee was identified as a Kroger employee. But according to that ALJ, that’s illegal.
Also, consider that a month ago, the NLRB was a primary proponent of the lost Volkswagen & United Auto Workers election in Tennessee. This was a predominantly uncontested election. That is, the company welcomed & supported the UAW, but the UAW still lost. After the election, UAW President Bob King partly blamed the loss on the NLRB’s “historically dysfunctional and complex process.”
The NLRB just doesn’t get it anymore, & it can’t get any love from the unions, management or even themselves. I suppose that it’s good that the NLRB is being transparent about its own disagreements, but when these disagreements concern thousands of pages of really confusing opinions & law controlling an employer’s ability to manage its own content & reputation, then that’s just being obnoxious & difficult. Aren’t businesses entitled to some sense of reassurance that it can protect their own content & reputation from the employees that they pay?
Anyway, regardless of the confusion caused by the NLRB’s regulatory foray into workplace social media, the reality is that every business wants some measure of security & control for its online image. One of the best ways to obtain this control & security is to learn as much as you can about the legal & regulatory devices operating to help & hinder your online communications. That’s where I come in. I’ve ventured deep into the bureaucratic abyss known as the NLRB investigatory process & have found the redeeming light of realization in their law department. Now, I’ll share that knowledge with you.
On Thursday, May 29, from 12 PM CST until 1 PM CST, I’ll be presenting on legal issues concerning social media & the workplace for Assurance University. If you’d like to register for it, I might be able to get you in for free (Assurance clients, guests & paid registrants get to view). Contact me & let me know. You can also click on the image below. This will be an open Q & A based discussion of social media, human resources management & labor & employment law, & it will be intense (after all, I’m going to try to teach you the fundamentals of social media & human resources law in an hour). This is my 2nd time doing this presentation for Assurance, so thanks to Assurance for setting this up.
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