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Social Media, Unions and Free Speech



Thomas Johnson – Tulane University school of Law



I am writing this article to inform the average person in HR about what the NRLA, National Labor Relations Act, is that was made into a law in 1936 and how it still effects free speech, social media and your employment today.


The NLRA is a law that as enacted to protect employees from the abuses of employers at that time. As the industrial revolution continued many employers treated employees poorly by paying them low wages, working seven days a work in terrible working conditions and even employed young children amongst other horrible things.


There was nothing that employers could not do for the most part. They even had no protections from workplace injuries. For the most part, before the NLRA employers had free rign to do just about anything to force workers to get the job done in any way possible. Employees were abused and taken advantage of often leaving employees with no recourse.


The NLRA allowed employers to join a union that could collectively bargain with their employers for better working conditions and better more competitive pay. The law forced unsavory employers to improve their working conditions and pay them a fair wage. For example, we got the 40-hour work week, weekends off, holidays, overtime, workers compensation and fair treatment from the NLRA as well as other items that have impacted us up to today.


The NLRA also gave employees the ability to strike when the employer would not bargain for better working conditions or pay in good faith which means all work would stop if the workers would legally strike until they agreed to come back their certain fair and equitable demands were met.


Overseeing the NLRA is the NLRB, the National labor Relations Board, which acts like a court system over the NLRA and handles complaints and violations between unions, unionized employers and employees. Over the years the NLRB has interpreted the NLRA is such ways at times the decisions are very difficult to understand.


Many of these interpretations have lasted throughout the years and have been applied to society as the times have changed as well as technology has changed. One of these changes and interpretations have been applied to is how Unions, Employers and employees can use social media in their daily communications as well as unionizing campaigns.


The creation of social media has had many different and significant effects on not only union related communications and the NLRB but also for free speech and how it relates to communication as an employee and what an employer can do to protect itself from harmful communications that can be seen by millions of people at any given time.


Companies have the right to be able to hold their employees accountable for the things they can on social media and how it could potentially impact their business. Free speech does not mean freedom of repercussions for an employee’s actions or comments when it has the potential to have the company loose revenue or be looked upon in an unfavorable way to their customers or even potential customers.


Take for example people that say sexist, racist or any type of derogatory comments that offend people and it gets back to the employer and the employer is now put into a position to defend itself due to the employee’s comments. This also applies to employees making violent or threatening comments to co-workers or others related to the company in some fashion as this could also negatively affects the company’s reputation or even violate company policies of violence in the workplace.


Some employees have attempted to claim they have a freedom of speech when they say things on social media that their employers hold them accountable for which could include verbal and written warnings to terminating their employment.


Unfortunately for the employee, freedom of speech rights guaranteed by the United States Constitution is only applicable to the government censure of a citizen’s speech. Freedom of speech does not apply to private employers. Employers have the freedom to discipline employees if they violate policies regarding speech or conduct.


Unsavory, profane and even threatening speech on social media although is not protected speech when it comes to the US Constitution is potentially and has been interpreted by the NLRB to be protected for employees that want to air their grievances about working conditions or pay.


The difference between what the NLRB has interpreted for protecting employees right to unionize and what is protected, and concerted activity has been debated for several years now and has come up with a far employee tilting protection for the employee.


In many cases that have been decided by the NLRB and the courts is that an employee can say just about anything they want even if the comments appear to be threatening, discriminatory or even vulgar and profane against their employer or even any employee of the company to include their managers and their family members.


The NLRB has reasoned the protection afforded by the NLRA and interpreted by the NLRB is the employee’s speech has to be so bad that it negatively affects the employer in many ways but an employee can make these comments as long as they add something to their comment where they complain or support their concerted rights to unionize.


As we have discussed, the NLRA with the interpretations of the NLRB protects employees from behavior that is covered by the law. In addition, our first amendment regarding freedom of speech does not apply to employees and employers as employers can discipline employees for speech that is harmful or threatening however the right for employees to make any comment they want is protected as long as they say things related to unionization.


This wide interpretation has allowed Unions and employees to make almost any comment they want even lie profusely and their actions are protected and has left the employer with little or no recourse to protect themselves. This allows the law to tilt in their favor and presents a burden to the employers.


Ultimately, employers should always keep this imbalance in mind when dealing with employee relations issues to understand when Unions attempt to unionize or violate their contracts, the NLRB will do very little to offer a resolution in favor of the employer.


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