Officials of the National Labor Relations Board recently weighed in on the legal risks employers bear under the National Labor Relations Act when monitoring employee/applicant use of social media.
During a panel discussion in Pennsylvania [as reported in Law360 (November 12, 2014)], Board Member Harry Johnson and NLRB General Counsel Richard Griffin confirmed what may be obvious to many: evolving technological media does not change long-standing prohibitions under the NLRA. Employers who, while monitoring social media, discover and then consider an applicant’s union sentiments or activity, or other protected concerted activity, in deciding whether to offer that person a job, may violate the Act.
While researching applicants through social media does not per se constitute a violation of the NLRA, the panelists cautioned employers that doing so may pose significant risk under the Act (and a host of other laws). If an unsuccessful applicant can establish that a prospective employer had knowledge of the applicant’s union/protected concerted activity through social media, the prospective employer may face liability if it cannot show that it would have taken the same action (not hiring the applicant) regardless of its knowledge of the activity. And, given the Board’s liberal imputation-of-knowledge standard, employers cannot expect this NLRB to worry long over imputing knowledge from the supervisor who learned of the protected conduct to the decision-making supervisor who did not. In most cases, the Board will impute one supervisor’s knowledge about an applicant to the decision-maker.
Johnson also addressed the risks employers face in monitoring the social media activity of existing employees. Most social media comments about employers are negative, and when that activity is joined by other employees, it can be considered protected under the NLRA. Any subsequent adverse action against the employees engaging in it can violate the NLRA.