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You might find yourself humming Johnny Cash’s song “I Walk the Line” when thinking about your rights as an employer to monitor your employees’ online activities. Employers monitor employee social media accounts for two main reasons. One is to protect the company’s brand against damaging and untruthful postings. The second one is to detect subtle signs of union organizing. Employers must walk the line of exercising their legal rights to protect their businesses versus violating privacy laws and the National Labor Relations Act (NLRA) Section 7 rights, which in turn protect union activity and “other protected concerted activity.”
It’s the word “other” that has led to a slew of NLRB cases, and many address the employee’s right to use social media for a variety of purposes, including to initiate union organizing. That is when the line is drawn. Employees are not likely to post, “Let’s start a union and show our manager he can’t treat us so poorly!” It is more likely to be a subtle post that says, “My work schedule was suddenly changed, and it’s making my life difficult. Someone I’ve been talking to said he can’t treat me this way.”
“I Keep My Eyes Wide Open all the Time”
The first step in union organizing is not an overt filing of a petition with the NLRB. It is covert and subtle. Some workplace behaviors may change, but a trend is not immediately apparent.
- Uptick in the filing of formal grievances without first discussing issues with supervisors or managers
- More frequent employee challenges to company policies, rules and management decisions
- Groups of whispering employees who suddenly stop talking when a manager approaches
- Employees who were once cooperative and friendly with supervisors become less cooperative and more formal
- Employees who usually relax during work or meal breaks with coworkers begin to have “projects” they must work on instead
These are just a few indications that are quite subtle, and they mostly revolve around changes in employee routines and attitudes. The key to detecting early signs of union organizing is for your supervisors and managers to be alert to changes in normal employee patterns of behavior. This even includes changes that are appreciated, like employees who are frequent rule breakers becoming ideal employees.
Add the Social Media Dimension to Finding Signs of Union Organizing
Social media adds a new dimension, The reason workplace behaviors is mentioned first, is that social media usage is often integrated with changes in employee behaviors. For example, a sociable employee who always enjoyed eating lunch with coworkers spends a lunch break alone in his car in order to text without interruption. Employees and unions are increasingly connecting via social media, making it more challenging to detect union representatives who are preparing employees to organize.
Another employer challenge is the fact that employees use social media for work and personal reasons, often blending the two. There are numerous privacy laws, but the NLRA extends protected concerted activities to social media. Employees can use their personal social media accounts to complain about working conditions, to conduct union activities and to organize co-workers. These rights mean an employee can posts items critical of the employer’s policies, procedures, supervisors and decisions.
You are allowed to monitor social media, but there are two points to keep in mind concerning the NLRA Section 7 and Section 8(a)(1). Section 7 addresses protected, concerted activity. Concerted means the activity is conducted with the authority of other employees and not just for the single employees. An activity is protected if it concerns the interests of employees. The NLRA Section 8(a)(1) addresses interference with Section 7 rights. What may not be apparent in reading the law is that it has many implications for employers, and one is that you cannot even create an impression that you are spying on employees’ union activities. The fine line becomes even thinner when talking about making an impression.
Individual Griping vs Collective Action
Work-related complaints must be related to a group of employees to be protected concerted activity. One clue the union is attempting to organize employees is when social media postings are not just “individual griping.” The postings are collective action in that several or more employees are voicing similar concerns, but individual employees are engaged in concerted activity when their actions are taken “with or on the authority of other employees.” Employees who have a personal gripe are probably just discontented, and managers should address the issue. An employee who posts a concern, and other employees share that same concern, may be someone who is talking to a union representative.
The key to detecting signs of union organizing and your employees is to keep your eyes wide open for indications of group action in the workplace and on social media. There are no hard and fast rules concerning social media except for protected concerted activity which is why a clear understanding of what that involves can provide clues.
- Increase in the use of the word “we” in postings
- Sudden or more frequent negative posts about the employer or working conditions
- Posts or tweets with links to positive articles involving unions or stories of employees being treated unfairly (from their perspective)
- Public posts inviting all employees to a “social event” or one with a guest speaker
- Change in the language used in public postings to include words like “grieve” and “rights”
- If possible, peruse the groups the employee belongs to on Facebook to spot potential union connections
Taking it Online
If you suspect employees are getting involved with unions and are seeing signs of union organizing, you should try to find out what apparent leaders among employees have been talking about. If they have been discussing the issues you find on social media, then you must walk the fine line (download NLRB’s OM Memo 11-74). If employees have been talking about something in the workplace and then take it online, it’s likely to be protected concerted activity.
Some employers use social media monitoring tools for company sites, but the laws concerning protected concerted activity still apply. Your employees have the right to discuss their employment terms and conditions. Unions are not likely to use communication channels that employers can access. There are no hard and fast rules. Digging in to find indications of union involvement requires understanding the union’s recruitment strategies which are subtle at first. The best route is to develop an engaged and informed workforce that doesn’t have any interest in unions in the first place.