As they fight for better working conditions both in the union and non-union context, employees increasingly use online web logs or "blogs" to better organize themselves. For organizational purposes, these blogs present numerous advantages over more traditional speech forms. This article adds to the growing voices calling for explicit protection of employee blogs under Section 7 of the National Labor Relations Act ("NLRA"), which protects "concerted" employee action taken "for mutual aid and protection" from employer retaliation, provided that such blogs otherwise comply with NLRA requirements. Furthermore, by analogizing to past NLRA jurisprudence concerning traditional organizational speech, this article argues that a "non-discriminatory access" rule should govern employee internet use; for example, if an employer allows employees to use the internet on their lunch breaks for non-work related reasons, that employer must also allow employees to access their organizational blogs. However, the NLRB has fashioned an important exception to NLRA protection that allows employers to punish otherwise-protected speech because it is openly disloyal. In order to properly protect employee organizational blogging, this article next discusses the uneven and subjective manner in which courts have applied this "disloyalty exception" to traditional organizational speech, and what impact this uneven application might have on blogs specifically. The article then isolates different factors courts consider when applying the exception, attempts to logically categorize traditional organizational speech into different forum categories (public, employee-sponsored, and employer-sponsored), and considers what differences or patterns in the exception's application, if any, may be found when employee speech occurs in different fora. The article concludes by suggesting a means for courts and the NLRB to more equitably apply the disloyalty exception and ensure proper protection for employee blogs. Since blogs quite easily lend themselves to the forum categorizations described above, courts should first consider what forum category the organizational speech appears in; courts should then apply the exception's "factors" with varying strength depending on that categorization.
Andrew F. Hettinga,
Expanding NLRA Protection of Employee Organizational Blogs: Non-Discriminatory Access and the Forum-Based Disloyalty Exception,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol82/iss2/25