Bar News - April 19, 2013
Labor & Employment Law: Social Media Policies Scrutinized by the NLRB
By: Beth Rattigan
As the use of social media has exploded, employers have grown increasingly concerned about employees discussing work-related matters on social media sites.
The National Labor Relations Board (NLRB) and its acting general counsel have taken a zealous interest in reviewing employers’ policies and disciplinary actions related to social media activity. In doing so, the NLRB seeks to protect "concerted activity" under Section 7 of the National Labor Relations Act (NLRA). The NLRA gives employees the right to engage in concerted activity for their mutual aid or protection. Generally speaking, there is concerted activity when two or more employees act together regarding work conditions, however, the action of a single employee may be considered concerted, if he or she involves co-workers or acts on behalf of others.
Under the NLRA, employees have a right to advocate for their working conditions, even where there is no union involved. Protected activity under Section 7 includes non-unionized employees’ "concerted" efforts at addressing complaints about the terms and conditions of their employment through social media, which can be a precursor to actual union activity. The NLRB’s authority under Section 7 applies to most private employers, not just those with a union or whose employees are seeking to form a union.
The NLRB’s move into private sector employment practices has caught many by surprise. Three recent NLRB decisions and several advice memos regarding social media from the NLRB’s acting general counsel highlight the fine line that employers must walk between prohibiting unwanted conduct and avoiding undue restrictions on protected activity.
In Costco Wholesale Corp., the NLRB held that a social media policy cannot have a blanket prohibition on defamation. A provision in Costco’s employee handbook prohibited employees from electronic posting of statements that "damage the company, defame any individual or damage any person’s reputation." The NLRB held that this policy violated the NLRA by chilling employees’ Section 7 rights. The board specifically noted that the provision did not include language that would restrict its application to defamation; therefore, employees could reasonably assume it restricted their protected right to collectively complain about the conditions of their employment.
Likewise, in Karl Knauz Motors, Inc., the NLRB held the employer’s "courtesy" policy that disallowed "disrespectful language which injures the image or reputation of the [employer]" violated the NLRA. This case involved the firing of a BMW car salesman over two Facebook posts. The NLRB upheld his termination on the basis of a Facebook post regarding a car accident at the neighboring employer-owned Land Rover dealership, affirming that this post was not protected activity. In contrast, the other Facebook post that criticized his employer’s BMW dealership sales event was determined to be protected activity by the Administrative Law Judge (ALJ) at the lower-level proceeding. The post was protected activity because it discussed employer actions (serving cheap food) that the ALJ reasoned could potentially affect employees’ commissions on sales. Thus, it was proper to terminate the employee for the first Facebook post, but not the second.
A nonprofit social services agency, Hispanics United of Buffalo, fired five employees for comments they posted on a co-worker’s personal Facebook page. One employee threatened to complain to the boss that others were not working hard enough. Another worker posted a Facebook message reporting the co-worker’s complaint about them, asking "My fellow-co-workers, how do u feel?" Several colleagues posted angry, expletive-laden responses.
Hispanics United fired the employee that posted the question and the four co-workers who responded to her, on the basis that they had violated the company’s harassment policies by bullying and harassing the employee who complained about them initially. The NLRB concluded that the employees were unlawfully terminated in violation of their Section 7 rights to engage in concerted activity under the NLRA.
The NLRB acting general counsel has issued three reports on social media policies within the past year and a half, warning that overly broad social media policies violate Section 7. According to the acting general counsel, violations of Section 7 rights occurred where policies prohibited employees from using social media outlets to:
- discuss or make disparaging remarks about the employer or supervisors;
- engage in "inappropriate" discussions about the company, management, and/or coworkers;
- violate, compromise or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity;
- constitute embarrassment, harassment or defamation of the employer or its personnel;
- make statements that lack truthfulness or that might damage the reputation or goodwill of the employer or its personnel;
- talk about company business, make any post that they would not want their manager/supervisor to see or that would put their job in jeopardy, or from disclosing inappropriate or sensitive information about their employer.
What’s an Employer to Do?
Unfortunately, the NLRB decisions and advice memos seem inconsistent in some aspects, can be difficult to interpret and do not provide intuitive guidance for employers. Adding to the uncertainty, a number of these decisions are on appeal to federal courts. The courts will ultimately weigh in on the social media issue, especially in light of the recent DC Circuit decision invalidating President Obama’s 2012 appointments to the NLRB. The NLRB has stated it intends to file a petition for writ of certiorari in Noel Canning v. NLRB, which is due April 25.
In the meantime, employers should 1) exercise caution before disciplining an employee for social media posts about their employment and 2) when crafting social media policies, avoid overly broad prohibitions, provide examples where possible, and provide a savings clause to carve out exceptions for Section 7 activity.
Elizabeth (Beth) Rattigan, a member of the NH Bar Labor and Employment Law section, is a director at Downs Rachlin Martin PLLC, a full-service law firm with offices in Vermont, New Hampshire and New York.