Social Media Prohibitions Declared Illegal

by Michael Haberman on February 4, 2013 · 0 comments

 

The NLRB's decision make in 2012 may be invalid due to recess appointments made illegally.

The NLRB’s decision make in 2012 may be invalid due to recess appointments made illegally.

You know all those news stories about people being fired for using social media and then reinstated because of the action of the National Labor Relations Board? Well, all those decisions may have been declared illegal! At least that may be the outcome of the action taken by a three judge panel of the U.S. Circuit Court of Appeals for the D.C. Circuit.Section 7 rights     

If you have been keeping up with this blog, other blogs and the news media you know that over the past year the NLRB has made numerous decisions that have an impact on non-union companies. Their actions have basically said:

  • You cannot terminate for social media “griping” if two or more employees were engaged in it, because Section 7 of the National Labor Relations Act protected that as “concerted activity.”
  • You cannot require employees to keep information confidential, unless illegally obtained, since the confidential information may be necessary for them to act in a concerted manner for their workplace improvement.
  • You could not prohibit employees from bad-mouthing supervisors.
  • You could not prohibit employees from using images of the company.
  • You could not prohibit employees from being rude.

Those are just some of the issues that the NLRB has ruled on in the last year.

“Sorry you didn’t have the right to make those appointments”

The Court of Appeals said that while President Obama has the right to make “recess” or “intersession” appointments the appointments he made on January 4, 2012 occurred one day after the Senate had returned to session on January 3rd. There was a great deal of legal wrangling that occurred in the hearing around the definition of recess and “the”, and about the intent of the framers of the constitution. If you are interested I refer you to this SHRM article, D.C. Circuit Strikes Down President’s Recess Appointments to NLRB, for a complete discussion.

The consequences

The consequence of the court’s decision was that three of the appointments made by President Obama were declared to have exceeded his constitutional powers and thus were invalid. With three board members being invalid this means that there was not a quorum on the board and all board decisions require a quorum. This means that all the decisions made are potentially invalidated. Potentially good news for employers depending on your point of view.

But before you get all excited and start firing people right and left for any Facebook statement they make realize that the NLRB and it’s attorneys don’t agree with the Court of Appeals. What does that mean? This will most likely end up in front of the U.S. Supreme Court. They may not agree with the Court of Appeals and then we are back to Square One.

So hold tight, don’t veer from what you were being instructed to do by your attorneys or HR consultants, and wait and see how this ultimately gets settled.

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