Employee-Bloggers Unite:

Your Blogging Activity May Be Protected by the NLRA!

A common misunderstanding about the National Labor Relations Act is that it protects only unionized employees and employees who are in the process of organizing a union.  Not so -- it also protects non-union employees who engage in "concerted activity" for "mutual aid or protection."  As Marc Cote points out in a recent Comment in the Washington Law Review, an employee who blogs about her employer and about her work experiences may be protected by the NLRA -- meaning the employer can't fire her or take other action against her because of her blogging activities.  To get this legal protection, an employee-blogger should do two things.  First, make sure the blogging reflects, or is intended to inspire, group activity.  The NLRA does not protect one employee complaining by herself -- it only protects employees who complain together, or a single employee who complains on behalf of other employees.  Second, the complaints should be limited to terms and conditions of employment -- wages, hours, working conditions, benefits, etc. -- and should not disparage the employer's product or divulge proprietary information or trade secrets.

On the other side of the coin, many employers have created policies regulating or forbidding employees from discussing any work-related matters on employee blogs.  While it is certainly within an employer's prerogative to warn employees against blogging about proprietary information and trade secrets, overbroad anti-blogging policies almost certainly constitute unfair labor practices under the NLRA.  Employers would be well-advised to review their blogging policies to make sure the policies comply with the NLRA.

The article is Marc Cote, Comment, Getting Dooced: Employee Blogs and Employer Blogging Policies Under the National Labor Relations Act, 82 Wash. L. Rev. 121 (2007) (Westlaw subscription required).

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