Fall Labor Conference Examines NLRB's Attack on Social Networking Policies

November 12, 2010

The annual fall meeting of the labor executives of our member companies explored the mismatch between the 21st century workplace and existing and proposed federal employment policies, with the growth of social networking technologies among the leading concerns.  Interest in a panel discussion of social media was piqued by the recent issuance of a complaint by the NLRB against a company that disciplined an employee for posting derogatory information about her supervisor on her Facebook page.  The complaint also said the company’s social networking policy was overbroad by prohibiting employees from making disparaging remarks about the company and prohibiting employees from depicting the company in any way using the Internet without company permission.  A panel of representatives from Target Corporation, BP America and Cox Communications, joined by Jones Day’s Roger King, generally agreed that social networking can have a positive impact and provide competitive advantages for companies.  However, it is also a minefield that not only has labor law implications, but poses a potential for harassment of co-workers, divulgence of sensitive company information and other areas that companies need to protect against.  Other conference highlights:

  • DOL Solicitor Patricia Smith stressed that the primary focus of the Department’s aggressive enforcement agenda is the “low-wage industries,” highlighting janitorial services, restaurants and construction.  Acknowledging that the vast majority of employers are law-abiding, she added: “We live in different worlds—the world that you live in is what most employees have, with employers acting responsibly.  The world we are focusing on is those employers who don’t care about the law and are focusing instead on short-term competitive advantages.”
  • Harvard Professor Richard Freeman, a strong proponent of pro-union labor reforms, said that recent polls show a sharp decline in public support for unions and acknowledged the legitimacy of employee representation outside the traditional union process.  He highlighted an as-yet-unpublished survey of 1,000 employees where 37% indicated that their workplace had a non-union, management-established system with employee representatives discussing wages and other terms and conditions of employment with their employer.  They further indicated that their representatives “can be counted on to stand up for workers, even if this means a disagreement with management.”
  • NLRB Chairman Wilma Liebman lamented that fewer and fewer employees are familiar with unions and union rights.  She said the Board is “looking at restoring confidence in our processes by revising our election procedures."  She indicated that “rulemaking” could establish greater stability in the law and, while “it is not the answer to all the Board’s woes, we should consider it in certain areas.”  NYU Law Professor Sam Estreicher said “the old model of unionism no longer works because they can’t organize the competition” and take wages and benefits out of the equation.
  • A panel of HR Policy member companies, including Ingersoll-Rand, R.R. Donnelley and A.P. Moller-Maersk Group, generally agreed with BEERG’s Tom Hayes and Alan Wild, that, with labor law reform legislation unlikely to be passed, organized labor’s interest in global labor strategies will grow.  Panelists emphasized that, in adopting codes of corporate social responsibility, it is very important for companies to clarify that their respect for employees’ rights of freedom of association does not undercut the employer’s own rights to communicate lawfully with its employees about union issues.
  • Representatives from General Electric and Southern Company joined Jones Day’s Andy Kramer in addressing the collective bargaining challenges facing companies during a period when the rules and costs associated with health care benefits will be in considerable flux.  They stressed the need to build in flexibility to address changes, including re-openers specifically tied to potential changes, such as an acceleration of implementation of the so-called “Cadillac tax.”  Mr. Kramer also stressed the need for effective communications with employees outside the bargaining context on the issue of changes in health care.