In an unprecedented action, the National Labor Relations Board (NLRB) has charged a company with committing an unfair labor practice for terminating an employee over her postings on Facebook. This is the first attempt by the NLRB to address whether an employee’s online discussions regarding a supervisor is a protected activity under the National Labor Relations Act (the “Act”). As it appears to be a national matter of discussions and arbitration, we are realizing that it has impacted Arizona’s philosophy of implementing discipline on its state workers.
Recent events inside the Arizona Corrections Department revealed similar instances where employee(s), voicing the opinions and concerns about the work place, have been chastised and reprimanded for those comments by their bosses. Demanding PACE entries be made in one employee’s file to begin the process of progressive discipline, employers appear to be wiggling around policies that appear to be contrary to the NLRB findings.
To complicate matters further, it appears that this problem is two fold as they [the bosses] are asking employees to infiltrate the Facebook social media to “investigate” and report back their findings to build alleged cases against employees determined to be disloyal based on their opinions, feelings or just general thoughts about the agency. The agency bosses, already a recipient of the “NO CONFIDENCE” letter written to the governor last November, have openly stated they want to gain the trust of their subordinates and change the workplace milieu to a more positive culture. In return for these efforts, it has been suggested by a few employees; they injects spies, loyal to them and mole for them and gleans whatever and who speaks ill about the agency on Facebook.
Are there any legal violations involved? Possibly and that will be determined later as there are some cases pending. However, locally, by putting his credibility on the line, the director and his staff are engaging in a practice that is conducive to fostering fear of reprisals and retaliation. Certainly, his recent practice of punishing employees who enjoy the social media does not add to the trust tone and may send them a sense of betrayal.
According to the NLRB, “The Act not only gives employees the right to attempt to unionize, it also protects employees from adverse employment action for discussing their working conditions with other employees. Once the Facebook comments about the supervisor led to the online discussion with other employees, the NLRB alleges the online commentary constituted “concerted activity” protected under the Act. To the extent the employee’s termination was based on this online discussion, the NLRB alleges the discipline violated her rights under the Act.
Perhaps its time to review the internet policies of the State of Arizona and determine if they are acting legally whenever they impose a sanction, comment or discipline on an employee who exercised their rights to expression. Secondly, the NLRB also challenges the company’s Internet policy itself as an unfair labor practice. The Act prohibits not only actual interference with concerted activity, but policies that would reasonably tend to “chill” employees from exercising their rights to discuss their working conditions. The NLRB alleges the company’s policy allowing termination for negative Internet postings could dissuade employees from exercising rights under the Act.