Social Media Use

Social Media Use and Unfair Labor Practice Charges

On June 26, 2014, the U.S. Supreme Court issued a decision in the Noel Canning case that may impact the validity of several decisions relating to protected concerted activity in the workplace. In National Labor Relations Board v. Noel Canning, the U.S. Supreme Court held that President Obama’s “recess” appointments to the NLRB were invalid, calling into question any decisions issued by the Board during this time frame.

The NLRB has indicated that it will work to resolve any cases affected by the U.S. Supreme Court’s ruling as expeditiously as possible. In the interim, employers should wait for further information from the NLRB before disregarding any opinions issued while the invalid Board was in place. If you have any questions regarding this decision and how it may impact your workplace, seek advice of counsel.

Beginning in mid-2011, the National Labor Relations Board began to weigh in on how employment-related conversations conducted in the context of social media are impacted by the NLRA. The Board has held that social media postings may constitute protected concerted activity under Section 7 when an employee discusses a posting related to terms and conditions of employment with another co-worker, or when co-workers respond to the posting.

Employers should remember that employees are protected by Section 7 even in non-union workplaces. For example, if an employee complains about the company’s salary structure on Facebook and other employees join in on the Facebook conversation, that social media activity may be protected concerted activity under Section 7 of the NLRA.

The Board has analyzed several social media policies, striking down many as overbroad in that they supposedly restrict the right of employees to engage in protected concerted activities. The NLRB’s guidance in this area, and the implications of that guidance, are discussed below.

NLRB Guidance: The NLRB’s Office of the General Counsel (OGC) indicated that social media is an area of significant concern by issuing three memoranda providing guidance in this area:

August 18, 2011, memorandum: Approximately 10 cases were analyzed, in which an individual was disciplined or terminated for social media postings. The OGC found in approximately half of these cases that the individual was engaged in protected concerted activity because the individual had discussed the issue with co-workers or co-workers had responded to the social media posting.
Three different social media policies were also analyzed and nearly all provisions were found to be overly broad. For example, the OGC held that a policy which “prohibited employees from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity” was overly broad because employees could reasonably construe it to prohibit protected conduct.
January 24, 2012, memorandum: Analyzed approximately 10 cases where an employee was disciplined or terminated for social media postings. In approximately half of these cases, the OGC concluded that the discipline or termination violated the Act, because the employee was engaged in protected concerted activity. Where an employee was not engaged in protected concerted activity, the OGC categorized the social media posting as “venting” or an “individual gripe.
Approximately four other social media policies were also analyzed, and three were found to be overly broad. In one of those decisions, the OGC considered two different versions of a social media policy. The first policy “prohibited discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.” The OGC concluded that this policy was unlawful, as it “would arguably apply to protected criticism of the Employer’s labor policies or treatment of employees.” The second policy “prohibited the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.” The OGC concluded that this policy was lawful, because it would not “be reasonably understood to restrict Section 7 activity.”
May 30, 2012, memorandum: Analyzed seven different social media policies, and six of the policies were found to contain unlawful provisions. Only one policy was found to be entirely lawful. Many of the unlawful provisions were ones typically found in employers’ social media policies. For example, a prohibition on “disparaging or defamatory” comments was held unlawful on the grounds that employees could reasonably construe it to apply to protected criticism of the employer’s labor policies or treatment of employees.
In addition, the OGC found that a rule “prohibiting employees from posting information regarding the Employer that could be deemed ‘material non-public information’ or ‘confidential or proprietary’” was unlawful because the term “material non-public information” was so vague “that employees would reasonably construe it to include subjects that involve their working conditions.” The OGC also concluded that an effort to save a potentially overbroad social media with a clause that stated it “will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act)” did not save it from being deemed unlawful.
Finally, as for the social media policy that the OGC found lawful, the principle rationale for this finding was that the “revised social media policy [was] not ambiguous because it provide[d] sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity.” For example, the OGC found that the rule prohibiting “inappropriate postings,” including “discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct” was lawful because it “prohibit[ed] plainly egregious conduct, such as discrimination and threats of violence, and there [was] no evidence that the Employer ha[d] used the rule to discipline Section 7 activity.”

Key NLRB Decisions: In addition to the three memoranda issued by the OGC, the NLRB has weighed in on the issue of social media in several recent decisions. Several recent cases have found social media policies unlawful. In EchoStar Technologies, an NLRB ALJ held that an employer who maintained a handbook which prohibited the use of social media to make disparaging or defamatory comments about the company and its employees violated Section 8(a)(1) of the Act, because the handbook provision “chill[ed] employees Section 7 rights.”

The Board reached a similar conclusion in Costco Wholesale Corp., when it held that an employer violated Section 8(a)(1) by “maintaining a rule prohibiting employees from electronically posting statements that ‘damage the company ... or damage any person’s reputation.’.” The Board reasoned that the rule clearly prohibited “concerted communications protesting the Respondent’s treatment of its employees.”

The NLRB has also issued several decisions holding unlawful terminations or discipline issued as a consequence of an employee’s social media postings. In Hispanics United of Buffalo, the Board held that an employer unlawfully fired five employees because of their Facebook posts and comments about a co-worker who intended to complain to management about their work performance.4 One of the subsequently fired employees vented on Facebook that a co-worker “felt we don’t help our clients enough. I about had it. My fellow workers how do u feel.” Four co-workers responded that the criticism of their job performance was unfair. The Board ruled that the Facebook conversation was concerted activity that was protected. The majority stated that although the employees’ mode of communicating their workplace concerns might be novel, the appropriate analytical framework for resolving their discharge allegations has long been settled under the Board’s precedent.

In Design Technology Group LLC, the Board again held that terminations for social media postings violated the Act. Here, the employees were having a dispute with their manager about the store closing time because the store was in an unsafe neighborhood. The employees made several Facebook postings related to this dispute and were terminated after another employee showed the postings to a manager. The Board reasoned that the terminations violated Section 8(a)(1), because the employees “were engaged in protected concerted activity when they presented the concerns of the employees about working late in an unsafe neighborhood to their supervisor and to the Respondent’s owner, and ... their Facebook postings were a continuation of that effort.” In addition, the Facebook postings “would have constituted protected concerted activity in and of themselves” because the “postings were complaints among employees about the terms and conditions of employment and about management’s refusal to address the employees’ concerns.”

Similarly, in New York Party Shuttle, the Board held that the employer “violat[ed] Section 8(a)(3) and (1) of the Act when it failed to give [an employee] any tour guide assignments after he publicized his union organizational activities and criticized the Respondent’s employment practices in similar email and Facebook postings to third parties.” The Board reasoned that the posting and email were continuations of the employee’s prior union activities, of which the employer was aware.

The Board has not found that all terminations or discipline issued as a consequence of social media postings violate the Act. In Karl Knauz Motors, an employee was terminated after posting comments and photos on Facebook regarding two incidents: (1) an accident with a Land Rover where the son of a customer drove the car into a pond; and (2) a promotional event at which the employer served food and drinks to customers. The Board held that the termination was lawful because the employee had been terminated for comments relating to the Land Rover incident, comments that did not constitute protected activity.

Additionally, in another case the Board’s Division of Advice concluded that an employer did not violate the Act when it fired an employee for profanity-filled comments the employee made about the company in a private Facebook group message. The Division of Advice reasoned that the terminated employee had not engaged in concerted activity, but instead had merely posted about individual gripes, postings which “merely reflected her personal contempt for her returning coworker and for her supervisor, rather than any shared employee concerns over terms and conditions of employment.”

Labor Union Actions That Violated the NLRA: In a case involving a labor organization, the NLRB determined that a union violated the NLRA by posting an interrogation videotape on YouTube and Facebook. In this case, a union business agent and three union organizers visited the worksite of a non-union subcontractor. They did not identify themselves or reveal their union affiliation. One carried a video recorder.

They told employees they had to ask some questions, that they were inspecting the job and that they had reports of illegal workers. They asked them about their country of origin, their immigration status and whether or not they had IDs. They asked them how and when they were hired, how they were paid and how they paid their taxes. At various times, the employees tried to resist answering the questions and return to work but the union’s agents instructed them not to.

A local union member edited the video down to approximately four minutes, added written editorial comments, then posted the edited version on YouTube and on the Facebook page of the local union.

The NLRB concluded that the union violated Section 8(b)(1)(a) of the NLRA because the union’s actions had a reasonable tendency to restrain or coerce employees attempting to exercise their Section 7 rights.