Social Networking Announcements by the NLRB

On August 18, 2011, the National Labor Relations Board (“NLRB”) issued a report summarizing recent case developments in 14 separate cases concerning social media in the workplace.  The cases involved Facebook and Twitter posts by employees.  In four of the cases, the Division found that the employees were engaged in “protected, concerted activity” because the employees were discussing terms and conditions of employment with fellow employees.  

Of particular importance to human resource professionals and company risk managers, the NLRB found in five of the cases that provisions of employers’ social media policies and handbook language contained policies so overly broad as to be unlawful and prohibited by the National Labor Relations Act (“NLRA”). 

Summary

A summary of the NLRB’s recent rulings finding “concerted” activity is provided below: 

Cases where employees’ Facebook postings about job performance and staffing were protected, concerted activity

In one case, the NLRB found that the employer, a non-profit social services provider, unlawfully discharged five employees who posted comments on Facebook relating to allegations of poor job performance previously expressed by one of their co-workers.  The NLRB concluded that the discharged employees were engaged in protected, concerted activity. 

In reaching the decision in the above case, the Board explained that activity is “concerted” within the meaning of the NLRA when an employee acts “with or on the authority of other employees, and not solely by and on behalf of the employee himself.”  The Board felt that the Facebook discussions in this case were “textbook” examples of concerted activity because the discussion was initiated by one co-worker in an appeal to her co-workers for assistance.  Through Facebook, she surveyed her co-workers on the issue of job performance to prepare for an anticipated meeting with the executive director, planned at the suggestion of another employee.  The resulting conversation among co-workers about job performance and staffing level issues was, therefore, concerted activity. 

Internet and blogging standards leading to discharge of employee for Facebook posting found unlawful by the Board

The NLRB considered whether the employer, an ambulance service, unlawfully terminated an employee in violation of the NLRB, when the employee posted negative remarks about her supervisor on her personal Facebook page. 

The activity at issue involved the employee posting a negative remark about her supervisor on her personal Facebook page after the employee asked for a union representative in the context of a customer complaint about her work.  The Facebook posting drew supportive responses from her co-workers.  This also led to further negative comments about the supervisor.  The employee was suspended, and later terminated, for her Facebook postings because such postings violated the employer’s Internet policies. 

At issue in this case was an employee handbook provision containing a blogging and Internet posting policy.  The policy prohibited employees from making disparaging remarks when discussing the company or supervisors, and from depicting the company in any media, including, but not limited to, the Internet, without company permission. 

In finding in favor of the employee, the NLRB found that the employee engaged in protected activity in connection with her Facebook posts. 

The Board also concluded that the portion of the employer’s policy prohibiting employees from making disparaging comments when discussing the company or the employee’s supervisors or co-workers, was unlawful.  The employer’s policy here contained no limiting language to inform employees that it did not apply to Section 7 activity under the NLRB, which promotes concerted activity. 

Employees’ Facebook postings were part of a protected, concerted conduct related to concerns over commissions

In a case involving a luxury automobile dealer, the NLRB found that the employer violated the NLRA when it discharged a salesperson/employee for posting on his Facebook page photographs and commentary that criticized a sales event held by the employer.  In finding in the employee’s favor, the Board found that the postings were part of a course of protected, concerted conduct related to employees’ concerns over commissions.  The NLRB rejected the employer’s argument that the postings were so disparaging of the employer’s product or so “egregious” as to lose the Act’s protection.  

At issue in this case was the salesperson’s activity in taking photographs of hot dogs and other inexpensive food and beverages offered by the luxury car dealership in connection with a sales event.  The message conveyed by the employee was that the cheap food and beverages offered sent the wrong message to clients and, thus, negatively affected sales and commissions. 

Employees’ Facebook postings about tax withholding practices were protected, concerted activity

In this matter, the Board considered a case in which the employer, a sports bar and restaurant, discharged, and then threatened to sue, two employees who participated in a Facebook conversation initiated about a former co-worker regarding the employer’s tax withholding practices.  This case also raised several issues concerning the employer’s Internet/blogging policy that prohibited “inappropriate discussions.”  The NLRB found that the discharges, threats of legal action, and the Internet policies were unlawful.

 In early 2011, several of the restaurant’s former employees discovered that they owed state income taxes for 2010 related to earnings from the restaurant.  Shortly thereafter, a former employee posted on her Facebook a statement, including an expletive, expressing dissatisfaction with the fact that she now owed money for taxes.  Several employees responded to the posting by clicking “like.”  Other employees made supportive comments on the posting.  One of the charging party employees asserted that she was also owed money and referred to one of the company’s owners as “[s]uch an asshole.”  Thereafter, the charging party received a letter from the employer’s attorney stating that legal action would be initiated unless she retracted her “defamatory” statements regarding the employer and its principals, published to the general public on Facebook. 

The Board found that the Facebook conversations constituted discussions about the terms and conditions of employment, such that they were protected activity under the NLRA.  Furthermore, the Board found that the charging party’s statements did not lose protection because they used defamatory language. 

In addition, the Board found that the employer’s threats to sue the charging parties for engaging in protected activity violated the NLRA, even if there was a reasonable basis for potential legal action. 

As to the lawfulness of the employer’s Internet/blogging policy, the employer’s company handbook policy regarding the Internet and blogging read that blogging, chat room discussions, e-mail, text messages, or other forms of communication could not be used to reveal confidential and proprietary information about the employer.  The policy also prohibited the employees from engaging in inappropriate discussions about the company, management and/or co-workers.  Employees were notified through the policy that violations could subject employees to discipline, up to and including termination. 

In examining whether the above policy violated the NLRA, the Board looked to Section 8(a)(1) of the Act to determine whether the work rule “reasonably tended to chill employees in the exercise of their Section 7 (concerted activity) rights.”  The Board concluded that the provision of the policy which subjected employees to discipline for engaging in “inappropriate discussions” about the company, management and/or co-workers could reasonably be interpreted to restrain Section 7 activity.  The policy utilized broad terms that would commonly apply to protected criticisms of the employer’s labor policies, treatment of employees, and the terms and conditions of employment.  Moreover, the policy did not define what was encompassed by the broad terms “inappropriate discussions” by using specific examples or limiting the examples in such a way that would exclude Section 7 activity.  Absent such limitations or examples of what was covered, the Board concluded that employees would reasonably interpret the rule to prohibit their discussion of the terms and conditions of employment among themselves, or with third parties, which violated the NLRA. 

Employees who posted offensive Tweets were not engaging in protected, concerted activity

 In five other cases summarized by the Acting General Counsel, the NLRB found in favor of the employer in instances where the postings by the employee did not raise concerns about issues on behalf of other employees or indicate that the employee was trying to initiate group action among other employees. 

As a summary of the key developments in the NLRB cases underscores, it is of vital importance to create, and review annually, employment policies that comply with changing law, as well as emergent technology. 

Practice Pointers

 By creating and consistently applying policies informing employees that their use of corporate networks, including e-mail access, can be monitored, the employer puts the employee on notice that the employee has waived his/her right to privacy in communications made on the company’s network. 

At a minimum, a sound social networking policy should contain the following:

• Establish a reporting procedure for suspected violations of social networking policies and also reiterate that a company’s anti-discrimination policies also apply to electronic communications.
• Clarify in the policy that nothing in the handbook language or policy language is designed to prohibit or inhibit the employee from discussing the terms and conditions of employment under the concerted activity provisions of the NLRA.
• Remind employees that computer and e-mail systems are not private and that the company may monitor computer e-mail and/or text messaging use.
• Require employees to sign a written acknowledgement form affirming that they have read, understand and will abide by the company’s acceptable use policy.
• Prohibit unauthorized transmission of corporate trade secrets and other confidential information.
• Define discipline to be imposed for transmitting or receiving communications containing pornographic, derogatory, defamatory, sexual, racist, or harassing statements.
• Define penalties for violating an acceptable use policy.

For additional information on social networking policies, click here to review a PowerPoint presentation presented by Robin Repass on July 20, 2011 on privacy, social media and employment law in the workplace.