Ironic that Nation's Oldest Employment Protection Agency Taking Lead on Employee Use of Social Media

An interesting trend is developing at the National Labor Relations Board (NLRB).  This employment protection agency created in 1935 and known for conducting Union elections and resolving labor disputes is in the forefront of protecting employee use of new social media. A few months ago, the NLRB issued an unfair labor practice complaint against an ambulance company for disciplining an employee who disparaged her supervisor in a Facebook posting.  That case ended in a settlement in which the employee was given an undisclosed amount of money in exchange for a release and resignation.  Just last month, the NLRB indicated that it intended to file an unfair labor practice charge against Reuters, the news corporation, for disciplining an employee for criticizing management using her Twitter account.  So here's what the NLRB seems to be thinking.  Employees using social media sites to complain about their bosses or about working conditions is no different than sharing such concerns around the water cooler.  If an employee is disciplined for posting information about his or her employer that is not a trade secret and relates to working conditions, the NLRB will consider that an unfair labor practice for discriminating against an employee for exercising their rights under the National Labor Relations Act.  So far, the NLRB has not been receptive to proportionality arguments, such as the potential on-line audience is potentially much wider than complaints around the water cooler or loading dock.  Moreover, for unknown reasons, on-line postings have an unwarranted legitimacy, staying power, and potential reach than workplace communications could never achieve.  Despite these "scope" concerns, the NLRB seems bound and determined to be the guardian of employee on-line communications.  Therefore, before disciplining an employee for criticizing the employer or management employees in an on-line posting, be sure to consider whether the posting could be considered protected speech by the NLRB.