As previously detailed in The Working World, Issue 10,1 the US National Labor Relations Board (the NLRB) has challenged some employers’ decisions to discipline employees for their use of social media sites. The NLRB recently issued a report presenting various case developments and emerging issues in the social media context, including 14 examples of employer disciplinary action and the agency’s determination in each case.2 This update provides additional guidance to employers in a rapidly evolving and often unpredictable area of the law.
Section 7 of the National Labor Relations Act of 1935, as amended (the NLRA) guarantees an employee the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”3 Section 8(a)(3) of the NLRA prohibits employers from discouraging “labor organization,” defined as “any organization of any kind… in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”4
An employer’s social media policy will be in violation of Section 8(a)(1) of the NLRA, and deemed unlawful, if it is found “to interfere with, [or] restrain … employees in the exercise of the rights guaranteed in section 7 [of the NLRA].”5 If the policy does not explicitly restrict Section 7-protected activities, it may still be found unlawful if employees would reasonably construe the policy’s language to prohibit Section 7 activity.6
A Savings Clause is No Salvation
While every instance of discipline for employee misuse of social media will require examination of the specific content and context of the employee’s comments, the NLRA has shown that it will focus on, and ultimately will dissect, the language of the employer’s social media policy. The cases outlined below illustrate the need for careful drafting and caution against ambiguous descriptions and reliance on general limiting language.
In its second report, the NLRB explicitly advises that an employer’s inclusion of language stating that its policy will not be interpreted or enforced in a manner inconsistent with employee Section 7 rights is not sufficient. We therefore no longer believe it advisable for an employer to simply add savings language to its social media policy. Instead, we believe the preferred approach is to include specific examples of policy violations, as suggested by the cases below, in order to ensure that an employee understands exactly which uses of social media are protected and which are not. Any social media policy that fails to provide specific examples of potential violations and activities that are allowed will be at risk of being deemed overbroad.
The recent NLRB guidelines highlight various reasons for which an employer’s social media policy could be found unlawful. Policies that generally prohibit employees from “making disparaging comments” or that prohibit “insubordination or other disrespectful conduct” about the employer in social media are classified as overbroad. The NLRB explained that a reasonable employee could construe such policies to restrict protected Section 7 activity, because comments regarding an employee’s wages, rates of pay, or terms and conditions of employment, even if disparaging, could be classified as protected.
Policies that prohibit “inappropriate conversation” or “unprofessional communication” have been found unlawful for similar reasons. In these cases, the NLRB focused on each policy’s failure to specify the exact type of communication that qualifies as ‘appropriate’ or ‘professional.’ As a result of this ambiguity, employees would be required to infer that certain protected rights, such as the right to converse about wages or terms and conditions of employment, would not be restricted under the policy.
As noted above, the NLRB cases caution against employer reliance on savings language in social media policies. For instance, an employer’s policy was deemed unlawful when it excepted the “discussion of terms and conditions of employment in an appropriate manner” from its prohibition on an employee’s comments about the employer in social media. Although it had attempted to identify and permit specific Section 7 communications, the employer ultimately restricted its employees’ ability to discuss other protected Section 7 matters, such as wages and terms and conditions of employment, that might be considered “inappropriate.”
It is therefore imperative for an employer to assure that its social media policy narrows the scope of potential violations to cover only those specific communications that are not protected, and to ensure that such examples could not be interpreted to infringe protected Section 7 rights.
Even if the employer’s social media policy is found to be unlawful, the NLRB will not automatically presume the imposed disciplinary action was also improper. Such a determination requires a review of the content and context of the employee’s offending activity. In order to determine whether the employee’s social media communications qualify as protected “concerted activity,” the NLRB will consider whether the employee acted with other employees and not solely by, and on behalf of, himself or herself, in an effort to initiate, induce or to prepare for group action rather than merely expressing an individual gripe.
As noted in our earlier discussion of this topic, the NLRB tends to disallow employer discipline of employees for using strong language or engaging in offensive actions in the context of protesting working conditions. The NLRB’s second report, which analyzes 14 separate employer disciplinary actions, highlights just how nuanced the agency’s factual determination can be in practice.
In several instances in which the NLRB invalidated the employer’s social media policy, the employee’s discharge under that policy was still upheld because the communications at issue did not warrant protection (i.e., they were not “concerted activity”). The agency upheld the employee’s dismissal because the activities were found to be mere expressions of personal anger or individual gripes which bore only a tangential relationship to the terms and conditions of employment, and which were not intended to induce group action (examples include, a bartender complaining on a social network about dishonest employees who gave away alcohol; and a phlebotomist’s profane outburst on a social network against her employer and the coworkers she hates).
Where there is no clear audience for the individual rant, the NLRB will generally find that the communication is not intended to induce group action. If the commentary is directed to a social media space that could reach coworkers, however, such as when the employee and co-workers are social network friends, the NLRB will examine the audience’s reception of the statement. If a complaint is made to an audience of other workers and it does not elicit a response, the guidelines suggest that the NLRB would find the communication unprotected (for example, a truck driver’s social network complaints about his supervisor’s unresponsiveness, which went unacknowledged by his co-worker social network friends, were found to be an individual gripe not initiated to induce group activity). If other workers pick up or develop the discussion, the NLRB is more likely to find that the comment induced group action. This, in turn, can convert what would otherwise have been an “individual rant” into concerted labor activity (for example, the agency found a veterinarian hospital employee’s social network complaint about a co-worker’s promotion to be protected concerted activity when it induced a social network conversation with three other coworkers regarding the hospital’s promotion policy). Employers should note that communications will constitute concerted activity whenever there is group interaction regarding Section 7 rights; the employees need not act (or even have a current plan to initiate action) in order to meet this standard.
Keeping Your Company’s Social Media Practices Up-to-Date
In light of the speed at which technology and social media usage have expanded in the workplace in recent years (with no slow-down in sight), and given the NLRB decisions and guidelines discussed above, now is the time for employers to review their social media policies.