The National Labor Review Act was enacted in 1935 to protect the rights of both employees and employers. 83 years later, this law is being applied to cases around the country involving those rights in relation to social media. Kevin Qualls, associate professor of mass communication and journalism at Murray State University, visits Sounds Good to discuss what the NLRA means in today's interconnected society.
With an increasing number of legal cases involving employee termination based on social media content coming forward, a new term has been coined in legal communities across the country called 'Facebook firings.' 'Facebook firings' refer to any termination related to employee-published content on any social media site, including Twitter, Instagram, and Snapchat. Seemingly insignificant posts on social media, whether out of anger in relation to the workplace or otherwise, have resulted in the termination of many employees who have sought legal action. Within the context of the National Relations Act, certain social media posts can be considered 'concerted activity,' which is legally protected under the 1935 law.
Qualls explains that the distinction lies in the context of the online post. If the post refers to poor workplace conditions, and if more than one person shares or otherwise interacts with the content, it is legally considered concerted activity. This involves "working conditions and the workplace, whether we should have a union, are they treating us fairly as employees," Qualls explains, "and even though in that post, you said something really horrible about your boss or your workplace, that speech is actually protected even though it's public." According to the National Labor Relations Board, concerted activity requires "two or more employees acting together to improve wages or working conditions. The action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others." Concerted activity is protected under the NLRA for all employees, not just union members.
This protection does not carry over to posts that do not refer to working conditions and are individually published and supported. Employee handbooks have protected employers' rights in the age of social media in the form of non-disclosure or confidentiality agreements, advertisement contracts, and intellectual property copyrights. Regulating employees' social media content in this way is constitutional, says Quall, and is actually "the kind of free speech you can control."
Qualls will be offering a graduate level online course this spring over Media Law for Business. The course focuses on ethical considerations of using others' intellectual property and images, awareness of social media etiquette, and the new 'Facebook firing' phenomenon. The class can be taken in its entirety, or some topics can be taken individually for professional development. Several classes will double as Continuing Legal Education credits for attorneys.
For more information on the National Labor Relations Act, you can visit the National Labor Relations Board website. To learn more information on the Spring 2019 course, contact Kevin Qualls at email@example.com.