Tuesday, January 29, 2013

Another take on Conan Doyle's "His Last Bow"

Spoiler alert.  The final “official” Sherlock Holmes story written by Sir Arthur Conan Doyle ends with the great detective Holmes and his arch-enemy Dr. Moriarty heading over the falls in each other’s death-grip as the last act of their final battle.  Today, the parts of Homes and Moriarty will be played by the National Labor Relations Board and the D.C. Circuit Court of Appeals (I will leave it to you which one is which, as opinions will vary sharply).

In a recent D.C. Circuit case, the court invalidated President Obama’s recess appointments to the National Labor Relations Board.  On the other hand, we have that very board, and in particular its Acting General Counsel, issuing reports about the interplay between social media and the workplace.  It is tempting to ponder whether the D.C. Circuit’s decision will invalidate everything the NLRB has put out on the subject of social media.  If that is the case, what restrictions, if any, can an employer now place on its employee’s social media activities without running afoul of the “collective action” prohibition of the NLRA?

The short answer is, “nothing has changed.”  The D.C. circuit’s case, Canning v. NLRB was limited to one decision, and is likely to land before the U.S. Supreme Court, especially because the issue was raised by an adroit maneuver by the United States Senate in creating the illusion that it was in session to avoid actually being in recess.  In some respects, the Canning decision is more important for its analysis of when recess begins and a Recess begins (why don’t they just use bells like we did in elementary school?)

The bottom line is that the NLRA permits employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Social media may be the means by which that goal is achieved.  While personal complaints may not constitute “concerted activities,” it remains important for every employer to ensure that no action taken against an employee based upon a social media posting can possibly be interpreted as concerted activity.

Even if the board members appointed during recess (or Recess) are unceremoniously “un-appointed,” the NLRB is likely to continue the tack it has to date examining social media policies as encroaching on the employees’ rights to collective action.  In fact, the NLRB has already issued a press release essentially stating that they will proceed with business as usual.  There is no love lost between the D.C. Circuit Court of Appeals and the NLRB.  If the multiple Federal Express decisions involving independent contractor versus employee status are any indication, these two have been at each others’ throats for a long time, and there’s no clear sign of any impending peace, or “last bow,” as it were.

So, it’s best not to step between these two enemies and play it safe with your social media policies.