Social Media and the NLRB

What Employers Need to Know to Avoid Problems

There is no getting around it. We live in a social-media-driven world. People regularly tweet on topics ranging from global economic policy concerns to their favorite pizza toppings. A film about the founding of the social-networking Web site Facebook won three Academy Awards last year. Even President Obama is in on the act.
After hosting ‘town halls’ using Facebook and Twitter, the president recently teamed up with LinkedIn for another town hall-style event. The social media-savvy Obama is now the third-most-followed Twitter user in the world, according to Twitter Counter, which tracks the social network’s 14 million users (Justin Bieber currently ranks second on the list, with Lady Gaga taking the top spot).
With instant tweets and Facebook posts literally at an employee’s fingertips, it should be no surprise that social media-related labor and employment litigation is on the rise. Recently, the associate general counsel of the National Labor Relations Board (NLRB) issued a report analyzing the board’s recent social-media enforcement actions. The report reviewed the facts and legal principles in more than a dozen unfair-labor cases involving employee use of Facebook, Twitter and YouTube.
The issue most-commonly raised involved allegations that an employer unlawfully discharged or disciplined one or more employees over the contents of social-media posts. The board’s attorneys also addressed the legality of several social-networking corporate policies accused of being overbroad and restrictive of lawful employee social-media use. The report provides guidance to employers who want to ensure that their social-media policies appropriately balance employee rights and company interests.

Fired over Facebook
The National Labor Relations Act (NLRA) protects employees, both union and non-union, when they engage in “protected concerted activity” — the coming together to discuss working conditions. This is commonly referred to as an employee’s Section 7 rights (Section 7 of the NLRA protects the right of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection”).
But when employees complain about their jobs or their boss on Facebook, are they discussing working conditions with fellow co-workers in a ‘water-cooler’ setting, or are the postings unprotected individual gripes? The NLRB’s report demonstrates that this remains an important and difficult question to answer.
In one case referenced in the report, a luxury-car salesman was fired after criticizing his employer on Facebook following a promotional event that demonstrated a new car model. The employee posted photos and comments disparaging his employer for serving hot dogs, stale buns, bottled water, and other inexpensive items. Apparently, the employee felt that more upscale refreshments were called for. One picture comment mocked the dealership owner for going “all out” for the promotional launch by providing an atmosphere where “clients could attain an overcooked wiener and a stale bun.”
Several days later, the general sales manager called the employee at home and told him to remove the photographs and comments from his Facebook page. The employee complied but later was fired.
The NLRB concluded that the employee’s critical Facebook posts were legally protected. The employee, who worked entirely on commission, had legitimate concerns about the impact the employer’s choice of refreshments would have on his bottom line. The employee also had shared his frustrations over the refreshment display at a staff meeting before posting the pictures and commentary. The board’s attorneys considered the Facebook posts an extension of his earlier expressed displeasure.
Following the release of the NLRB’s report, an administrative-law judge agreed with the board’s attorneys, noting that “there may have been some customers who were turned off by the food offerings at the event and either did not purchase a car because of it or gave the salesperson a lower … customer-satisfaction rating because of it.”
Two restaurant employees were similarly fired after commenting about their employers’ tax policies on the web. After a former employee expressed frustration on Facebook over the employers’ tax-withholding practices, a current employee ‘Liked’ the post, and another posted a derogatory comment about the restaurant owner. Both were let go for not being “loyal enough.”
The board’s attorneys concluded that their discharge was unlawful because the employees’ Facebook conversation shared concerns about important terms and conditions of their employment — the employer’s administration of income-tax withholdings.
Not all employees were as fortunate. For example, a Wal-Mart employee went to Facebook to complain about management “tyranny,” and suggested that the store was in for a wakeup call because several employees were about to quit.
After co-workers responded to his comment and asked why he was so “wound up,” the employee complained that his assistant manager had been chewing him out for misplacing merchandise. The employee’s tirade continued, as he threatened that, if things did not change, the store could kiss his “royal” behind.  The employee was subsequently disciplined for his conduct.
In this instance, the board’s attorneys concluded that the discipline was justified. The employee’s comments were an individual gripe, rather than an attempt to foster discussion about the workplace. The statements did not contain any language suggesting that other employees engage in group action, and were nothing more than a projection of personal frustration over a job.

Is Our Policy Unlawful?
A number of the cases reviewed by the board’s attorneys also addressed employers’ social-media policy provisions. In one case, the employer maintained a “blogging and Internet posting” policy that prohibited employees from posting any pictures on the Internet that depicted the company in any way. This included a prohibition on pictures that portrayed a company uniform or vehicle, or displayed the company logo.
The policy was deemed unlawfully overbroad because it prohibited employees from engaging in protected activity. For example, pursuant to the policy, an employee could not post a picture of workers carrying picket signs portraying the company logo, or wearing a company T-shirt in connection with a protest involving the terms or conditions of employment.
Another case involved a company policy that prohibited employees from using social media in a manner that compromised or disregarded another individual’s privacy rights. The policy also prohibited postings that embarrassed or damaged the reputation of other employees. Again, the NLRB indicated that the policy was overbroad because the rule provided no definitions or guidance as to what the employer considered to be private or confidential. Absent any limitations on what was covered, the rule could be interpreted as prohibiting protected employee discussion of wages and other terms of employment.

Where Are We Now?
It is clear from the NLRB’s report that the board considers a broad scope of social-media activity to be protected. Although ‘concerted’ activity typically involves two or more employees acting together to improve their conditions of employment, or at least a single employee seeking to initiate or to prepare for group activity, a lone employee’s social-media commentary likely will be protected when the statements express his or her sentiments about working conditions.
Follow-up comments or ‘Likes’ from other employees are not necessary to demonstrate that the social-networking activity is a concerted effort. Employers should also carefully craft all of the provisions in a company social-media policy. It is critical that the policy is free of ambiguity.  Employees, union and nonunion alike, should not be led to believe that protected social-media activity is prohibited.

John H. Glenn has been a member of a member of Skoler, Abbott & Presser, P.C. since 1979.  Prior to joining the firm, he was employed by the National Labor Relations Board in Cincinnati. He also has served as an adjunct professor of Labor Law at Western New England College School of Law. John S. Gannon, an associate at Skoler, Abbott & Presser, P.C., joined the firm in 2011. He is admitted to practice in state and federal courts in Connecticut.

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