A member of your staff posts on his coworker’s wall, “You should have seen the nasty mess in the office today . . . . Again . . . . I sure wouldn’t want my dog sleeping in that. My stupid, lazy boss told me to clean it up, and it wasn’t even my mess. I’m not doing that again. I don’t care if I get fired.” Can you discipline the employee for posting damaging remarks about your company for the entire world to see? Maybe not.

If you are an employer considering disciplinary action for an employee’s inappropriate or distasteful social media posts, you should beware. The National Labor Relations Board (“NLRB”) has expanded its foothold in regulating such conduct. On August 18, 2011, and again on January 24, 2012, the NLRB’s Acting General Counsel issued two reports addressing twenty-eight different cases that shed light on when it is lawful and unlawful under the National Labor Relations Act (“the Act”) to discipline employees for social media activities, such as posting comments on Facebook and Twitter.

The Act, dating back to 1935, limits the way employers may react to workers in the private sector who seek to create labor unions, engage in collective bargaining, or who take other forms of concerted activity in support of their demands. Because the Act covers most private-sector employees, the NLRB’s report has implications for most all employers, regardless of whether or not the workplace is currently unionized.

The reports focus on two sections of the Act:

  1. Section 7 – precluding an employer from engaging in conduct that would be viewed as interfering with “protected concerted activity,” which means employee activity pertaining to the terms and conditions of employment on behalf of a group of employees (as opposed to on behalf of the individual employee); and
  2. Section 8(a)(1) – precluding employer from enacting policies that restrain an employee’s right to engage in protected concerted activity.

And, the reports underscore two main points:

  1. Employer policies should not be so sweeping that they prohibit the kinds of activity protected by the Act, such as the discussion of wages or working conditions among employees; but
  2. An employee’s comments on social media typically carry no protection if they are “gripes” made solely on his or her own behalf, and involve no sharing of common concerns.

Does Social Media Activity Fall Under the Protection of the NLRA?

Yes, it may. The Act says that employees have the right to engage in concerted activities for the purpose of collectively bargaining for changes in the terms and conditions of employment. So what does this mean? Believe it or not, this means that covered employees who complain about their workplace using a very public social media forum may be legally protected from discipline. They can Facebook, Tweet, or blog their grievances without recourse, so long as the activity can be deemed to have been engaged in with the objective of initiating or inducing change in the workplace on behalf of a group of employees.

The reports offer several examples of protected employee conduct utilizing social media. Among others:

  1. Employees complaining to each other via Facebook (with expletives) about their employer’s tax withholding practices;
  2. Employees complaining to each other, again via Facebook, about their manager’s attitude and style, leading one to say that she hated “that place” and could not wait to leave and that it was the manager who brought on a lot of the drama and made it so bad;
  3. After learning that she had been transferred to a lower paying position, an employee took to Facebook and, using expletives, said that her employer had “messed up” and that she was “done with being a good employee.” This post led to several more by others, including coworkers, that eventually led one to call for a class action;
  4. A commission-paid employee posting on Facebook pictures and sarcastic commentary criticizing the inexpensive manner in which his employer conducted a sales event;
  5. An employee passed over for promotion took to Facebook to complain about the selection process and to say that she “was pretty much told the work she had been doing wasn’t worth anything and that she couldn’t do it anymore,” prompting a coworker Facebook friend to comment that “it would be pretty funny if all the good employees actually quit”;
  6. An employee posting negative comments on Facebook about a supervisor (including calling him a “scumbag”) who was investigating a customer complaint against the employee;
  7. Multiple employees posting comments (which included swear words and sarcasm) on Facebook criticizing the work performance of their coworkers and staffing level problems.

In each of the above situations, the conduct was protected under the Act and could not be subject to employer discipline because: (1) the communications concerned the terms and conditions of employment; (2) the subject of the communication was brought to management’s attention, or the employee had reason to believe the communication would result in a discussion with management; (3) the communications addressed employees’ shared concerns; and (4) the communications were directed at coworkers or discussed with coworkers.

Now, let’s think about the employee who feels the need to seek a cleaner workplace by posting about it on Facebook. He’s chatting about the conditions of his employment; perhaps he told his manager about the issue; he could have reason to believe that he may have more success in enacting change for a cleaner work place with support from his colleagues; and yes, he’s communicating with a coworker who may agree. So, employers may need to think twice before they give him a pink slip.

Does Section 7 Give Employees the Green Light to Unleash a Torrent of Disparaging Remarks by Way of Social Media?

Generally, no. If the commentary is not directed toward coworkers or is not made with the intent to change the terms or conditions of employment, then the employee is not engaged in protected concerted activity. The reports address several situations in which an employee’s use of social media was not protected activity. For example, an employee who complained that her employer paid low wages and lacked sufficient equipment on a senator’s Facebook page was terminated. The NLRB explained that the communication was not protected activity (and the termination was not unlawful) because: (1) the post was not discussed with the employee’s coworkers; (2) the employee did not try to raise the issue with management, and she did not expect the senator to resolve the problems with her employer; and (3) none of the employee’s coworkers had met or organized any group action regarding the subject of the employee’s comments. Complaining by yourself about your employer to an outside entity that is not a union has never been protected activity.

In another case, a reporter created a Twitter account after being encouraged to do so by his employer. On that account, the reporter criticized his employer’s copy editors, made comments about area homicides (which were a part of his beat), and criticized an area television station. The NLRB stated the reporter’s subsequent termination was not unlawful because the Twitter posts did not relate to the terms and conditions of his employment, and the reporter did not seek to involve coworkers – both of which are required for activity to be protected under the Act.

And, in a final example, an employee took to her Facebook page to update her status with two comments: the first that consisted of an expletive and the name of the employer’s store and the second that stated, simply, the employer did not appreciate its employees. She was later terminated. Although one coworker “liked” one of the employee’s Facebook comments, the NLRB explained that communication was not protected activity (and the termination was not unlawful) as it was nothing more than an individual gripe: “The Charging Party had no particular audience in mind when she made that post, the post contained no language suggesting that she sought to initiate or induce coworkers to engage in group action, and the post did not grow out of a prior discussion about the terms and conditions of employment with her coworkers.”

Does Section 7 Give All Workers Protection?

No, not all workers. Assuming an employer is covered by the Act, different rules apply, and different actions are warranted, depending on an employee’s position. Supervisors, for instance, are not employees covered under the Act. Thus, their social media activity carries no protection under the Act.

Can Employers Enact Policies That Restrict Their Employees’ Use of Social Media?

Yes, but the policy should be narrowly defined. Employers’ policies should describe social media and outline which activities are subject to the policy. For instance, if possible, the policy should reference other relevant policies, including the employer’s anti-discrimination/harassment, computer use and confidentiality policies.

The reports address specific social media policy provisions which the General Counsel deemed overbroad and in violation of the Act because the provisions utilized broad terms that could be read to reach criticism of terms and conditions of employment. This includes commonplace terms like “inappropriate” or “defamatory.” For instance, one employer’s social media policy limited employee discussion of terms and conditions of employment to discussions conducted in an “appropriate” manner, thereby prohibiting, albeit implicitly, “inappropriate” discussions. Because the policy made no attempt to define the term, “appropriate,” the NLRB stated that employees might reasonably infer that comments critical of management would be considered “inappropriate” and forbidden, even though the policy expressly stated that it would not be interpreted to interfere with the employees’ right to participate in concerted activity. The NLRB thus concluded that the social media policy was unlawfully overbroad.

The reports offer other examples of broad social media policy provisions that may run afoul of Section 8(a)(1) of the Act. According to the reports, an employer cannot:

  1. Generally prohibit its employees from discussing the company, its employees or its competitors;
  2. Broadly prohibit its employees from posting pictures of themselves online, which depict the employer in any way;
  3. Broadly prohibit its employees from using social media in a way that “may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of that person;”
  4. Generally prohibit “defamation,” “harassment,” “rude and discourteous behavior,” “inappropriate discussions,” or “offensive conduct,” without qualification; or
  5. Blanketly prohibit its employees from using the employer’s logos or photographs.

By contrast, the reports make clear that employers may lawfully prohibit employees from publishing specific kinds of disparaging or harassing remarks using social media. In one recent case, for instance, the NLRB approved of an employer’s social media policy that prohibited the posting or display of comments about coworkers, supervisors or the employer that were “vulgar, obscene, threatening, intimidating” or a violation of the employer’s anti-discrimination and anti-harassment policies.

What Can Employers Take Away From the Reports?

Employers should consider the following:

  1. Review and modify existing social networking policies to comply with these requirements.
  2. Train supervisors and managers on the requirements of the law so that they do not create liability by wrongfully reacting to protected employee behavior.
  3. Profanity generally will not justify discipline for protected concerted activity. Having said that, threats of violence or harassment implicating race, religion, or sex, for example, are not protected. So, if an employee posts, tweets or blogs in a manner so as to infringe on such protected classifications, the employer can, and should, take action.
  4. Concerted activity about the company or its employees does not lose its protected status just because a statement is false or defamatory; the statement must be maliciously false to lose its protected status under the Act which means the employee must make the statement actually knowing that it is false or with reckless disregard for whether the statement is true. The mere fact that a statement is false, misleading or inaccurate is insufficient to demonstrate that it meets the maliciously false standard.
  5. Policy provisions concerning social media usage should not be overly broad and should contain disclaimer language that the “policy will not be construed or applied in a manner to limit employees’ rights under Section 7 of the NLRA.”
  6. Policy provisions concerning social media usage should state and serve a legitimate business purpose.
  7. As with all employment policies, social media policies should be applied and enforced consistently.

This area of the law is destined to become increasingly complex and difficult for employers to balance company rights and interests with those of their employees.

The Act applies to private employers engaged in interstate commerce, but excludes railroad, airline and public employers. (Those employers are governed by different statutes.) So who or what is engaged in interstate commerce? While this has been the subject of considerable legal debate, employers whose work involves or relates to the movement of persons or things (including intangibles, such as information) across state lines or from foreign countries are typically engaged in interstate commerce. Consequently, timeshare resorts, which serve the needs of their owners and guests nationwide, are likely engaged in interstate commerce, thus falling within the ambit of the Act’s coverage.