Abstract:
An important managerial prerogative is the ability to prescribe and enforce workplace rules designed to maintain decorum in the workplace. Recent developments at the National Labor Relations Board (NLRB) have highlighted emerging issues regarding the tension between this prerogative and concerted, protected activity under the National Labor Relations Act (NLRA), which provides workers – regardless of whether they belong to a union – with a protected right to engage in concerted, or group, activity for purposes of collective bargaining or “other mutual aid or protection.” The tension has been dramatized by the increasing use by employees of social media such as Facebook, Twitter, and blogs to voice workplace gripes, often in inappropriate and sometime vulgar ways. Some employers seeking to punish such behavior, however, have learned the hard way that such commentary may be protected even though the audience includes nonemployees, or that the policies they are seeking to enforce are overbroad and infringe on an employee's rights protected under the NLRA.
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