The National Labor Relations Act of 1935 (NLRA) created the National Labor Relations Board (NLRB) It gives employees the right to organize and bargain collectively with their employers. This is called unionization. It protects their activities, including speech, from any retaliation. What first comes to mind are scenes from The Grapes of Wrath–huge corporations surrounded by picketers, signs, and angry mobs.
Not so any more. The NLRB has adopted a more aggressive enforcement policy with respect to small business, even non-profits. In the modern age many forms of communication—tweets, emails, the spoken word, Facebook posts, websites—can be protectable speech even if the posts are injurious to the employers’ business.
You Do Not Have To Be A Union Or Union Organizer To Be Protected.
Any employee who communicates with another employee for the purpose of forming a collective complaint to the employer is engaging in protected conduct.
In a 2003 NLRB decision, the Board ruled that the employer violated the Act when it suspended an employee for (a) violating its rule prohibiting its employees from discussing salaries and wages with each other, (b) interrogating employees concerning their discussion of salaries and wages with each other, and (c) ultimately discharging the employee.
The employee disclosed the salary of another employee without their permission arguably to fashion a protest against unfair wages. The other employee’s right to privacy never entered into the analysis. Incidentally, California Labor Code Section 232 prohibits any of the following: (a) Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages, (b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages, (c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages. The California code does not yet address the situation where an employee discloses the salary of another without their permission. However, the Equal Pay Act that goes into effect on January 1, 2016, will include a provision stating that an employer shall not prohibit an employee from discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise his or her rights under this section.
In a 2014 case, the Board ruled that derogatory comments about the employer posted on the employee’s social media was protected speech under the Act. Rumors, misrepresentations, gossip and the like are all protected unless the employer can demonstrate a real adverse impact, such as serious morale issues, on the ability of the employer to conduct business.
As we move into the digital age the employment landscape becomes ever more complicated. And there is no bright line on how to proceed.
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