NLRB Memo Provides Insight on Employee Use of Social Media - Labor & Employment Law Alert
The advent of social media has heightened the challenge for employers of maintaining civility in the workplace – and doing so without violating the National Labor Relations Act (NLRA). Recognizing the potential for uncertainty, the National Labor Relations Board (NLRB) recently issued a 24-page memorandum summarizing the facts and holdings in each of its social media-related cases in the past year. The memorandum provides important insight for employers looking to implement an effective policy without subjecting themselves to undue legal risk.
Section 7 of the NLRA gives employees the right to form, join, or assist labor organizations. It also guarantees employees the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Even in the absence of a labor union, an employee complaining about wages, hours or working conditions on behalf of himself or herself and other employees cannot be disciplined or discharged for such conduct under the NLRA. Therefore, all employers must keep a close eye on the NLRB’s recent interest in the intersection of social media and traditional labor law.
Social Networking Misconduct
When an employer can lawfully discipline an employee for social networking misconduct has been a controversial issue. The NLRB’s lengthy memorandum surveyed nine cases involving disciplinary action taken against employees for the content of their Facebook® and Twitter® posts. In four of these cases, the NLRB determined that the employees’ social-networking activity was protected under the NLRA.
In one case, for example, a luxury auto dealer terminated a sales employee for his Facebook posts criticizing the employer’s staging of a sales event. During the event, the employer served customers hot dogs, cookies and snacks. Employees had previously discussed concerns that serving inexpensive food to potential purchasers of luxury vehicles would negatively impact sales and commissions. The NLRB determined that the employee’s termination was unlawful. According to the Board, the employee’s posts were part of a course of protected, concerted conduct related to employees’ previous concerns over commissions. The Board also emphasized that the posts did not disparage the employer’s product and were not so “egregious” as to lose the Act’s protection.
In the remaining five cases, the NLRB determined that the employees’ social networking activity was not legally protected. For example, the Board considered whether an employer—a nonprofit facility for homeless individuals—violated the NLRA when it terminated an employee for inappropriate Facebook posts referring to the employer’s mentally disabled clients. In that case, while working on an overnight shift, the employee engaged in a conversation on her personal Facebook wall with two friends. During the course of the conversation, the employee noted that it was “spooky” being alone overnight in a mental institution, that one client was making her laugh, and that she did not know whether the client was laughing at her, with her, or at the “voices” in their own head.
The employee was ultimately terminated after the posts were brought to the employer’s attention. Unlike the example cited above, the Board found that she had not engaged in protected concerted activity. The employee had not discussed her Facebook posts with fellow employees, was not seeking to induce or prepare for group action, and her activity was not an outgrowth of the employees’ collective concerns.
Suffice it to say, the legality of disciplining an employee for social networking misconduct will hinge on the facts of each individual case. Nevertheless, when these cases are viewed collectively, a number of recommendations can be distilled in order to guide employer’s decisions in this context:
- Note when the post was submitted. Was the post submitted during working hours or on the employee’s own time? In the four cases where the Board found discipline unlawful, employees had submitted the offensive posts on their own time. An employer will likely have a stronger argument for discipline if an employee is engaged in social-networking activity on company time.
- Pay attention to context. Be sure to examine the circumstances giving rise to the offensive post. The Board is more likely to side with the employee when his or her post concerns the terms and conditions of employment. Pay particular attention to whether the post concerns matters relating to compensation, working conditions, performance, discipline, staffing levels and/or scheduling issues.
- Be mindful of the intended audience. Examine whether the offensive post involves collaboration with other employees. For example, are coworkers commenting on the offensive post? Does the post appear to be a continuation of a previous conversation or debate involving coworkers? Alternatively, is the post merely an individual gripe addressed to non-coworkers? Remember, the NLRA protects “concerted activity.” In determining whether an employee’s post constitutes concerted activity, the Board will typically examine whether the activity is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”
- Don’t be too quick to pounce on an employee for his or her use of profanity. Profanity laced posts may still be protected under the NLRA. For example, the memorandum summarized a case in which an employee’s Facebook posts were protected despite the fact she referred to her supervisor as a “scumbag.” There, the offensive conduct occurred outside the workplace and during nonworking time. Additionally, the comments were made during an online employee discussion pertaining to supervisory action. Finally, the outburst was not accompanied by verbal or physical threats.
Social Networking Policies
The memorandum also discussed several cases in which employers had implemented unlawfully broad social media policies restricting how employees could communicate online. For example, in one case, an employer violated the NLRA because its policy restricted employees from talking about company business on their personal accounts, or posting pictures or comments involving the employer or its employees that could be construed as inappropriate. In another case, an employer violated the Act where its policy precluded the use of the employer’s logos and photographs of the employer’s store, brand, or product, without written authorization.
In finding these policies unlawful, the Board emphasized that their broad application could potentially sweep up activity protected by the Act. However, the memorandum also underscored the fact that many of the policies at issue contained no limiting language to inform employees that the rules were not designed to inhibit activity protected under the NLRA. Thus, the memorandum appears to suggest that a narrowly tailored policy is more likely to stand up to scrutiny if it includes language suggesting that its application is not intended to interfere with rights afforded under the Act. The memorandum also suggests that it would be in the employer’s best interests to articulate a legitimate rationale underlying the policy at issue.