Raising the stakes in the National Labour Relations Board's (NLRB) war on employer monitoring of social media, an administrative law judge ruled on September 2 2011 that Hispanics United of Buffalo violated the National Labour Relations Act when it terminated employees for discussing on Facebook criticism that a co-worker had made about their performance. No administrative law judge had previously issued a ruling regarding social media usage. While each future case will be extremely fact specific, employers would be well advised to promulgate robust and lawful social media and
blogging policies. Such policies may protect the company, its clients and employees, but employers should be mindful of the lessons learned from recent NLRB advice memoranda and the Hispanics United of Buffalo decision.

The NLRB's advice memoranda and latest decision provide employers with meaningful guidelines for complying with the NLRB's current view of the National Labour Relations Act. The NLRB's stated primary concern with social media-related discipline and policies is that such actions will chill the exercise of employees' rights under Section 7 of the act. Section 7 protects employees' rights to self-organise, assist in labour organisations and engage in other "concerted activities for the purpose of collective bargaining or other mutual aid or protection". Importantly, Section 7 rights are not limited to employees who are union members, but rather apply equally in non-unionised settings.

In Hispanics United of Buffalo, an employee posted on her Facebook page that a co-worker was criticising her and other co-workers' performance and planning to complain to management. She asked, "My fellow coworkers how do u feel?" Her co-workers began responding with their own frustrations regarding such criticism and in some instances targeted the alleged criticising co-worker.

The administrative law judge ruled that these Facebook posts constituted concerted activity because the employees were not engaging in this expression solely by and on behalf of themselves. Citing decades-old NLRB decisions, the judge added that "individual action is concerted so long as it is engaged in with the object of initiating or inducing group action." From the facts, the judge ruled that the employees were engaging in activity due to concern that the complaining
co-worker would take her criticisms to management.

To avoid potential National Labour Relations Act violations, employers should avoid creating policies that may interfere with an employee's rights under Section 7. The NLRB's test to determine the lawfulness of an employer's policy is whether:

  • an employee would reasonably understand the policy to prohibit activities protected under Section 7;
  • the policy was created in response to union activity; or
  • the rule is applied in order to restrict Section 7 rights.

The NLRB has attacked employers whose social media policies prohibited employees from making disparaging remarks about the company and supervisors where they failed specifically to permit Section 7 activity. Meanwhile, the NLRB has looked favourably upon policies that expressly state that the policy is not intended to restrict Section 7 activity. In one advice memorandum, the NLRB found it was enough that the employer wrote that the company was not intending "to restrict the flow of useful and appropriate information".

The NLRB also looks carefully at the context of the potentially unlawful policy. It has made clear that phrases may not be read in isolation; rather, the NLRB looks at the entire policy to determine the employer's intent. Thus, for example, a policy provision that could be problematic standing alone might nonetheless be found by the NLRB not to violate Section 7 rights based on the context provided by surrounding terms of the policy.

The NLRB has also stated in these advice memoranda that the prohibition of discriminatory or defamatory remarks does not improperly limit Section 7 activity. However, an employer must have evidence of discriminatory social media posts before it acts. The administrative law judge in Hispanics United of Buffalo rejected the employer's claim that the offending employees violated the employer's anti-harassment/discrimination policy because there was no evidence that their co-worker was being targeted based on any protected status.

Fortunately, the NLRB has made clear that social media postings regarding work complaints do not automatically become concerted activities. It recently issued advice memoranda stating that the following conduct on Facebook was not protected by Section 7:

  • an emergency medical services worker complaining on a US senator's page that her pay was low and her employer provided poor first responder services;
  • a bartender griping that he was not receiving tips and describing his customers as "rednecks"; and
  • a residential caregiver at a facility for the mentally ill joking about hearing voices and the residents' mental illnesses.

In each of these cases the employee was not using Facebook to reach out to co-workers or improve working conditions.

This area of the law is likely to experience dramatic changes in the near future, as court challenges to the NLRB's view are resolved and political changes alter the composition of the NLRB. In light of the NLRB's current guidance, however, employers should review their social media policies and consider adding language that specifically excludes from coverage any Section 7 activities. Employers that have not yet promulgated policies should consider doing so in order to make employees aware of their obligations and ensure that managers appreciate the extent to which employees may properly be subject to discipline for social media activities. Moreover, employers should carefully assess whether social media postings implicate Section 7 rights before taking disciplinary action against employees based on such activities.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100), fax (+1 212 715 8000) or email ([email protected] or [email protected]).