Wages, Hours and Working Conditions

These magic words define the areas of mandatory collective bargaining issues where federal labor laws apply. They are also the areas of employee speech that cannot be restricted by employer rules, regulations or retaliation. An employee cannot be fired or punished for making any statements relating to any of these three issues, even if they are severely critical of the boss and/or the company. In an era of social media and social networks, the consequences of exposure of such negative comments well beyond the workplace can impact the company’s image to their customer base, so employers have been quick to adapt corporate policies that ban such negative statements in social media. The National Labor Relations Board – the administrative arbiter of our national labor laws – has been equally quick to condemn such limiting company policies.

“The labor board’s rulings, which apply to virtually all private sector employers, generally tell companies that it is illegal to adopt broad social media policies — like bans on ‘disrespectful’ comments or posts that criticize the employer — if those policies discourage workers from exercising their right to communicate with one another with the aim of improving wages, benefits or working conditions.” New York Times, January 21^st. This applies to postings that extend well outside of the immediate place of employment, venues like Facebook or Twitter.

But step outside of those three basics, and the legal protections no longer apply. Employers can in fact adopt policies that restrict employees from making negative comments that do not deal with any of these issues. Ranting over stupid customers, the quality of the company’s products or services or personal “venting” that do not relate to wages, hours or working condition can be controlled by company policies and can form the basis for discharge or other company-related discipline.

Critics believe that the NLRB should be relegating its rule-making and restrictive decisions to genuine collective bargaining situations and not to employers in the absence of concerted union-related activity. Given the fact that union membership has dropped from a peak of 35% of the American workforce in 1954 to about 12.1% today, that perspective would pretty much eviscerate the NLRB and relegate their impact to a negligible minority of employers. The only real growth in union membership in recent years has been in the public sector. According to Wikipedia, “Adding in the 3.7 million federal civilian employees, in 2010 8.4 million government workers were represented by unions, including 31% of federal workers, 35% of state workers and 46% of local workers.”

Labor laws were enacted well over-half a century ago during an industrial era where the potential of collective bargaining in the private sector was important even in the absence of an actual union organizing effort. Thus, the NLRB actually can limit company activities even where there are no unions trying to gather representation. The NLRB has approved some corporate policy language: Wal*Mart’s ban “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.” While rejecting others: GM’s “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline” or Costco’s ban employees’ posting things that “damage the company” or “any person’s reputation.” NY Times. In a nation where many believe that First Amendment “free speech” is protected everywhere, finding out that there are limits when looking at private action may come as a shock. The change in the way we communicate through social media has resurrected those concerns, but understanding the new rules is now basic to employer and employee alike.

I’m Peter Dekom, and in a rapidly changing world, old rules in new contexts will need to be re-examined across the board.