President Franklin Delano Roosevelt signed into law the National Labor Relations Act on July 5, 1935, well before World War 2, in the midst of the Great Depression, and when big coal, steel and railroad companies held sway over employees. And the NLRA is still at work and affecting Social Media Background Checks today. Roosevelt was a staunch supporter of employees and unions and would be happy that this piece of legislation continues to help the cause, 80 years on.
So what do employers need to know in 2016 about the NLRA of 1935 when considering Social Media Background Checks on current employees or potential recruits? Section 7 of this Act allows that employees may engage in communications about “Protected Concerted Activity” – and that employers may not act in opposition. In the 1930’s these activities may have taken place on a street corner or pub. In 2016 the more likely venue would be a social media site. These protected online discussions may include chatter about wages and working conditions or supervision. The law prohibits employers from discriminating against candidates for engaging in such Protected Concerted Activities with their current employer.
- There are several factors to consider whether an employee’s postings on the Internet constitute protected concerted activity under the NLRA. For example, let’s say that your company is conducting a Social Media Background Check on someone who is known to “whine online” a lot about possible workplace grievances. This could be either an existing employee, or perhaps a recruit who seems to be complaining too much about his current employer. Should the employer act on the Social Media Background Check findings after considering:
1. Are many coworkers connected into online groups?
2. Are the employees complaining about working conditions that are the responsibility of the employer? “There aren’t enough pretty girls working here” would not be included.
3. Are coworkers making similar complaints and agreeing with the original problem or is this just general whining about everything?
4. Has the original discussion thread evolved into a discussion on collective action?
If postings among company workers agree with the list above, and if discussions pertain to company compensation, working conditions, benefits, and supervision, then there is an increased chance that it would be found as a Protected Concerted Activity. In this case, those responsible for hiring and firing decisions should not even see these Social Media Background investigations.
Franklin Roosevelt, 1935, and Social Media Background Investigations
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