Social Media and The NLRB

Brian O'Neal
in Legislation,Social Media

In light of the continuing popularity of social media websites such as Facebook and Twitter, employers need to be aware of the potential legal impact of disciplining or discharging employees due to their comments or postings made on social media websites.  The National Labor Relations Board (“NLRB”) has been processing an increasing number of charges filed by employees alleging they were unlawfully disciplined or discharged as a result of comments made on Facebook or other social media websites.  The NLRB has also taken an interest in evaluating social media policies implemented by employers to determine if the policies are overbroad in violation of the National Labor Relations Act (“NLRA”).

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.”  The NLRB has previously ruled that an activity is concerted when an employee acts with or on the authority of other employees. However, in interpreting the term “concerted” very broadly, the NLRB has indicated that individual action is concerted if it is engaged in with the object of initiating or inducing group action or if the individual action is the logical outgrowth of concerns expressed by a group of employees.  The NLRB has considered activity to be “protected” under the NLRA where the activity relates to terms and conditions of employment.    

In issuing recent complaints against employers, the NLRB has taken the position that if social media postings by employees involve protected, concerted activities then employers cannot lawfully discipline or discharge employees for their postings.  It is important to note that the recent precedents set in social media cases are applicable to employers regardless of whether their work force is represented by a union and regardless of whether the activity at issue relates to a union.   

In August 2011, the Acting General Counsel of the NLRB issued a report summarizing the investigations and findings regarding several recent cases that involved the use of social media and/or employers’ media policies.  Among other cases, the report discussed a case in which an Administrative Law Judge found that an employer violated the NLRA by discharging five employees for posting on Facebook their reactions to a co-worker’s criticism of their work performance.  The ALJ reasoned that the Facebook postings regarding job performance were “concerted protected activity.”  The ALJ determined that the discharged employees did not lose the protection of the NLRA even though there was sarcasm and/or swearing in a few of the Facebook posts, because the conversation was objectively not offensive.

In another recent case, an employer fired a salesperson because he posted on facebook photos of a sales event at the employer’s facility and critical commentary regarding the sales event.  The NLRB issued a complaint against the employer for firing the salesperson because it considered the facebook postings to be part of a course of protected activity regarding employee concerns about how providing inexpensive food and beverages at events may impact their sales and commissions.  In issuing the complaint, the NLRB also reasoned that the employee’s postings were concerted activity, because, despite acting alone in making the facebook postings, the postings were a direct outgrowth of an earlier discussion among salespeople about their concerns related to the sales event.

In another case cited in the August 2011 report, the employer fired employees for posting comments critical of the employer’s tax withholding practices.  The Acting General Counsel’s report indicates that the Facebook postings were considered to be related to employees’ shared concern about a term and condition of employment (the employer’s administration of income tax withholdings).  It was determined that the postings did not lose protection under the NLRA despite the fact that one of the two fired employees used profanity in reference to one of the employer’s owners.   

The August 2011 Report details another case in which it was found the portion of an employer’s policy which prohibited the employees from posting pictures of themselves that depict the company in any way, including the employer’s logos or company uniform, to be unlawful.  The reasoning was that such a rule could restrain employees from engaging in protected activity such as posting pictures of employees carrying a picket sign depicting the company’s name or wearing a t-shirt portraying the company’s logo in connection with a protest involving terms and conditions of employment.  It was also concluded that the portion of the employer’s policy that prohibited employees from making disparaging comments when discussing the employer or the employee’s superiors, co-workers, and/or competitors was unlawful because, among other things, the policy did not contain any limiting language to inform employees that this portion of the policy did not apply to activity protected by Section 7 of the NLRA. 

As a result of the NLRB’s recent approach to social media cases, employers should make efforts to ensure that their media policies could not be construed as reasonably tending to chill employees in the exercise of their rights to discuss wages and other terms and conditions of employment.  Among other things, employers should ensure that their media policies are not overbroad.  It is helpful to either refrain from broad terminology or define all key words in the policy that could potentially be construed as vague or overbroad.  Additionally, a social media policy should include a specific disclaimer which indicates that the policy does not prevent activity protected by the NLRA.  Nonetheless, pursuant to the recent guidance provided by the NLRB, there are still several legitimate interests an employer can protect through a narrowly drawn social media policy such as the legitimate interest in prohibiting employees from disclosing trade secrets and proprietary information and the legitimate interest in prohibiting employees from engaging in unlawful discrimination and harassment.


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