On January 24, 2011, the General Counsel of the National Labor Relations Board (NLRB or the Board) released a second report discussing social media cases decided under Section 7 of the National Labor Relations Act (NLRA). Pursuant to the NLRA, employees (whether unionized or not) have a right to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection,” (called a “Section 7 right”) and it is an unfair labor practice for an employer to interfere with, restrain or coerce an employee in the exercise of this right. Posts on social media sites, even if the posts are made from home computers during non-working hours, can constitute such concerted activity in some circumstances. As discussed at Dechert’s October 2011 Labor Seminar, the General Counsel’s first report on this issue, which was released on August 18, 2011, described 14 cases in which it considered whether employer policies and practices regarding employees’ use of social media ran afoul of Section 7. In this latest report, the General Counsel has offered opinions on an additional 14 cases. Although not the definitive opinion of a court or the NLRB, the General Counsel’s comments are instructive regarding circumstances that may give rise to a Section 7 violation.
The General Counsel approved social media policies that “prohibited the use of social media to post or display comments about co-workers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s work place policies against discrimination, harassment, or hostility” on account of a protected characteristic.
However, the policies with ambiguous adjectives in social media policies fared worse. The General Counsel believes that social media policies using broad and/or vague adjectives to describe what employees may or may not do violate the NLRA because such policies may be construed to limit employees’ Section 7 rights, and thereby chill employees exercise of those rights. Specifically, the General Counsel objected to policies prohibiting making “disparaging comments about the company,” prohibiting “discriminatory, defamatory, or harassing web entries,” permitting only “appropriate” and “professional” discussions about the terms or conditions of employment, prohibiting “insubordinate, disrespectful, or inappropriate conduct or conversa-tions,” and prohibiting “unprofessional communication that could negatively impact the employer.”
This new report also suggests that context matters. For example, the General Counsel commented that a policy prohibiting employees from using or disclosing confi-dential or proprietary information was lawful when promulgated by a drug store chain, because in the context of pharmaceutical sales the policy would not be construed by employees to apply to Section 7 rights. This finding is striking, because an employer operating clinical testing laboratories put forth a similar policy, prohibiting disclosure or communicating information of confidential, sensitive, or non-public information concerning the company on or through company property, which the General Counsel characterized as overbroad pursuant to the NLRA.
Similar to the prior report, the General Counsel reported that employers violated the NLRA in several cases by disciplining or terminating employees who engaged in concerted activity through their speech on social media sites. For example, the General Counsel noted that an employee’s comments that an employer behaved badly when demoting her, and the subsequent Facebook conversation it incited, “clearly” constituted concerted activity; thus, her termination as a result of this conversation was unlawful.
However, the General Counsel determined that em-ployee terminations due to inappropriate comments on social media sites in some cases were lawful because the employees’ comments in those circumstances were not protected concerted activity. In two cases, the General Counsel opined that employees’ comments about the poor performance of co-workers did not constitute protected speech under the NLRA. The General Counsel reasoned that these comments were not protected because co-worker performance is too attenuated to the terms and conditions of employment. The General Counsel also approved terminations due to employees posting personal gripes: including, an employee’s post of an expletive and her employer’s company name; an employee’s rant against other co-workers and the employer, and an employee’s posts complaining about a co-worker sucking his teeth.
Employers should recognize that they may face serious liability under the NLRA by maintaining an overbroad social media policy, or if they discipline or terminate an employee unlawfully because of the employee’s use of social media. Accordingly, employers are advised to review their social media polices for terms including, but not limited to, “appropriate” “profession-al/unprofessional” and “disparaging” and consider reworking their polices to be more specific. The General Counsel suggested that including specific examples of what sorts of social media speech are prohibited, or permitted, may help save a potentially overbroad policy in some circumstances.