Pub. 1 2012 Issue 2

18 San Diego Dealer The National Labor Relations Act (NLRA) was originally passed in the 1930s to protect employees who were seeking to start or join a union. But the law is much broader. It also protects nonunion employees who simply discuss or complain about their“wages, hours or working condi- tions”with their fellow coworkers. So the lawprotects any non-managerial employee – whether involved with a union or not – who engages in “protected, concerted activity.” The “activity” is discussing or complaining about any aspect of their employment, including their supervisor or the owner of the company. It is “concerted”if two or more employees are involved or if only one employee is making the complaint, but is making it on behalf of coworkers or is seeking to rally them to the cause. Finally, it is “protected” as long as it is done in a reasonable manner. For example, employees are protected if two or more demand a meeting with their manager or the dealer to discuss their entitlement to higher wages, the way the Saturday schedule is being set, or the heat in the shop. Concerted activity loses its protection only when the employee or employees cross the line and the conduct becomes, as the NLRB puts it, “so opprobrious as to forfeit protection under the Act.” Exactly when and how it becomes“so opprobrious”that it crosses the line depends on a detailed analysis of a number of factors and will ultimately be made by the NLRB. Unfortunately, the current NLRB is extremely “pro-employee” and has signaled that it intends to allow employees to engage in a range of conduct that previously would not be permitted. We saw a recent case involving a dealership where a nonunion salesperson posted on his Facebook page offensive comments about the food that the dealership had provided at a customer event. The employee was found to have engaged in “protected concerted activity” because the posted remarks, while sarcastic and offensive, were related to his concern that the quality of the food served by the dealershipmight affect the “brand image” and might ultimately affect his commissions. In another dealership case, a sales employee met with the owner to discuss his complaint about the sales pay plan and their working condi- tions. The meeting went downhill, with the salesperson calling the owner a“f---ing mother f----ing”, a“f---ing a--hole”and a“crook”and threatening to make the dealer pay. Even that language did not cross the line. If this hasn’t happened already, it will: You will see or learn about an employee’s Facebook posting which criticizes or embarrasses you as a manager or which is highly critical of the dealership or which criticizes a business decision. What should you do about it? Well, it depends. The first step is to determine if it is a personal gripe or if it is “concerted activity.” Purely personal gripes are not protected by the NLRA. However, if a coworker or two respond to the post in agreement, it has become “concerted activity.”Suffice it to say, this is one of the more complicated areas of the law. Therefore, we recommend that you contact a labor and employment attorney who has studied the NLRB’s recent cases and let the attorney help you make that determination. RULE #5: Supervisors Are Not Protected Like Employees Are Although the National Labor Relations Act protects employees who post comments related to their “wages, hours and working conditions” from being disciplined or discharged, the Act does not protect supervi- sors. Therefore, a supervisor who complains about his job or his boss – whether in the break room or on Facebook – is not protected by the law. Furthermore, because most employers hold their managers and supervisors to a higher standard than rank and file employees, conduct that might be tolerated if an employee does it, need not be tolerated if a manager or supervisor does it. RULE #6: Don’t Go Where You Weren’t Invited There are cases holding that it is an invasion of privacy to access someone’s account when you are not authorized to do so. So you could invade someone’s privacy and subject yourself to legal liability if you pressure subordinates to give you their passwords, or access to their Facebook pages, so that you can then access the third party’s account for yourself. The same holds true if you pose as someone else to get “friended.” The NLRA also prohibits employers – and their manag- ers – fromunlawfully“surveilling”the protected concerted activities of their employees. The idea is that employees should be free to discuss matters of common con- cern without fear of retribution or punishment by their employer. If employees have not given you access to their postings, your accessing them could constitute unlaw- ful surveillance. It would be no different than asking an employee what was said at a meeting of employees called to discuss forming a union. CONT I NUED FROM PAGE 17 Your company’s policy against harassment should explicitly cover all forms of harassment including electronic harassment.