The National Labor Relations Board (NLRB), which oversees the protections of the National Labor Relations Act (NLRA), recently released a summary of 14 cases it investigated involving social media. (The official NLRB report can be accessed at: https://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases).
Although NLRA issues are commonly raised in union settings, the NLRA applies to non-union settings and non-union member employees who collectively raise issues of the terms and conditions of their employment. More specifically, “Section 7” of the NLRA provides that employees have the right to self organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. See 29 U.S.C. § 157. Section 7 activity includes non-unionized employees’ “concerted” efforts at addressing complaints about the terms and conditions of their employment and extends to “concerted” efforts through social media outlets.
Because of the informality of social media postings, when employers are challenged for making adverse employment decisions because of an employee’s social media communications, a defense is often the informality and personal insults (usually directed at supervisors) included in the communications. For Section 7 activity to lose its protections under the NLRA, however, it must be determined to be “opprobrious,” which is not satisfied merely because of swearing, sarcasm, or name-calling, in the context of a conversation that is otherwise related to the terms and conditions of employment or supervisory actions. For example, an employee’s reference to her supervisor being a “scumbag” remained protected activity since it was made in the context of objecting to supervisory action. Also, an employee’s reference to her employer company’s owner as an “asshole,” made in the context of objecting to faulty tax withholding (that resulted in multiple employees owing money for tax that was not properly withheld), was protected as both a “group complaint” and contemplated future group activity. (Amusingly, the NLRB responded to the employer’s contention that the reference to the owner being an “asshole” was defamatory by stating that a statement “will not lose its protected status unless it is not only false but maliciously false,” and indicating that the employee’s Facebook postings “to the extent that they constituted statements of fact that could be alleged as defamatory, were not even false, much less maliciously false.”)
The context of the social media “conversation” was also significant. The conversations that called for (and received) coworker comments and support, that were conducted in preparation for a meeting with supervisors, or that succeeded related discussions with supervisors were significant to the determination that the conversations constituted “concerted activity” for employees’ “mutual aid and protection,” and were not merely expressions of individual interests. For example, where luxury car salespeople expressed concern about their employers’ decision to serve “inexpensive food,” e.g., hot dogs, chips, etc., at an automobile launch event and the impact it would have on their commissions, an employee’s Facebook photograph album, with accompanying descriptive criticisms, was found to be concerted activity related to the terms and conditions of employment.
On the other hand, a bartender was permissibly terminated by his employer restaurant/bar because of a Facebook conversation he had with a non-employee, in which the bartender was critical of the employer’s tip-sharing policy. The NLRB explained that the bartender’s complaints were not protected, because the topic of his posts (which the NLRB conceded would constitute “terms and conditions” of his employment) were never discussed with his coworkers, before or after his posting, and as a result, had not constituted “concerted activity.” (In fact, at least three of the NLRB’s summarized cases were found to not involve “concerted activity,” because the speaker never had addressed his or her complaints with co-workers in an attempt to initiate group action.)
A union was found to have violated the NLRA by videotaping “interviews” of non-union laborer worksite crews about the workers’ immigration statuses and later posting the videos on You Tube and the union’s Facebook page. The NLRB found that the union had engaged in a host of errors, including interfering with their performance for a nonunion employer, threatening to call immigration authorities, by videotaping/photographing the exchanges, and by posting the videos to Facebook and You Tube.
Perhaps the most practical lessons for employers are ensuring that their social media policies are not overly broad. Many of the employers at issue in the NLRB’s example cases were guilty of having crafted policies that were too-broad in their prohibitions and failed to make necessary exceptions for conduct that would constitute concerted activity entitled to the NLRA’s protections.
The NLRB was definite in striking down many of the subject employers’ social media policies, including those that prohibited employees from using social media outlets to:
(1) discuss or make disparaging remarks about the employer or supervisors;
(2) engage in “inappropriate” discussions about the company, management, and/or coworkers;
(3) violate, compromise or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity;
(4) constitute embarrassment, harassment or defamation of the employer or its personnel;
(5) make statements that lack truthfulness or that might damage the reputation or goodwill of the employer or its personnel;
(6) 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.
At the very least, in light of the NLRB’s report, social media policies should specifically carve out an exception in the instances of application to “Section 7” activity.
Additionally, multiple employers in the NLRB’s example cases had policies prohibiting employees from depicting, in their personal social media accounts, photographs or videos of the employer (or other visual evidence of an employer, its brand, products, etc.). The Board explained that the policies were overly broad because they would, as an example, unlawfully prohibit an employee from posting pictures of the employees picketing (labor matters) in front of the employer’s store.
Consequently, although Facebook, Twitter, and other social media outlets are thought to be exclusively personal, they also represent employees’ modern-day method of discussing their collective employment interests, as well as their perceptions of their employer’s violations of those interests. Employers should exercise caution in responding to an employee’s social media posts about their employment to ensure that any resulting disciplinary action does not violate the NLRA’s protections of concerted activity. Moreover, in crafting social media policies, if an employer chooses to do so, an employer should just as carefully navigate around Section 7 rights to ensure that otherwise well-intentioned policies do not run afoul of the NLRA.