The National Labor Relations Board (NLRB) recently stepped up its efforts to prohibit employers from taking action against workers based on the employees' statements posted online. In the initial "social media" cases, the prosecutorial arm of the NLRB asserted that such employee statements are "protected, concerted activity" and that discipline for posting is unlawful retaliation. Several recent NLRB actions, however, indicate that the agency is retreating somewhat from its broad view of "protected, concerted activity" as it relates to employees' social media posts. While this evolving area of law is confusing, the various cases offer some guidance to employers. Given the breadth of federal labor laws, and the use of social media by workers in both union and non-union workplaces to share their workplace issues, the NLRB's scrutiny of social media use should cause concern for all employers, regardless of whether the company has a union.
First Facebook Complaint. The NLRB's pursuit of employers' social media policies first intensified last November, when the agency prosecuted American Medical Response of Connecticut, alleging that the company committed an unfair labor practice by firing an emergency medical technician who had posted negative statements about her supervisor on Facebook. The NLRB said that the employer's social media policy was overly broad because it prohibited employees from disparaging the company or individual supervisors and because it forbade employees from depicting the company on the internet in any way without permission from the company. Although the AMR case settled before it went to trial, it was significant because of the NLRB's apparent position that any work-related posting was "protected concerted activity."
High Profile Twitter Case. In April 2011, the NLRB threatened to prosecute Thomson Reuters for unlawfully reprimanding a reporter for using Twitter. Deborah Zabarenko, a Reuters employee and local leader of the Newspaper Guild of New York, posted the following tweet after a manager asked employees to comment on how Reuters could become a better place to work: "One way to make this the best place to work is to deal honestly with Guild members." Ms. Zabarenko was told by management that her tweet violated a company policy that prohibited saying anything that would "damage the reputation of Reuters News or Thomson Reuters." She claimed to be intimidated and threatened by management's response to her tweet. Rather than face a trial, Reuters agreed to settle and resolve the case by negotiating a new social media policy that included language referencing employees' right to engage in "protected concerted activity."
Two Early Cases Illustrate A Murky Path Forward. Two additional cases demonstrated the NLRB's ambivalence in regulating social media use. The first case, Lee Enterprises, Inc. d/b/a Arizona Daily Star, involved Tucson, Arizona's largest newspaper, the Arizona Daily Star. The Daily Star did not have a social media policy governing its employees, but encouraged its reporters to use social media, including Twitter, to disseminate information to the public. A Daily Star reporter took this direction and tweeted a number of tasteless statements that the newspaper found inappropriate. Initially, the reporter tweeted, "The Arizona Daily Star's copy editors are the most witty and creative people in the world. Or at least they think they are." The Managing Editor found no humor in this and prohibited the reporter from airing his grievances or posting about the Arizona Daily Star in any public forum. Notwithstanding, over the next few months, he tweeted:
- "You stay homicidal, Tucson. See Star Net for the bloody deets."
- "What?!?!? No overnight homicide? WTF? You're slacking Tucson."
- "Suggestion for new Tucson-area theme song: Droening [sic] pool's ‘let the bodies hit the floor'."
- "I'd root for daily death if it always happened in close proximity to Gus Balon's."
- "Hope everyone's having a good Homicide Friday, as one Tucson police officer called it."
Finally, the reporter tweeted that he considered the reporters on a local television station "stupid." The Daily Star terminated the reporter's employment based on these inappropriate tweets. He filed an unfair labor practice charge against the publisher, alleging that the termination was in retaliation for protected concerted activity. The NLRB General Counsel's Office decided not to prosecute the case, concluding that the publisher had properly fired the reporter for violating workplace policies and repeated warnings by not ceasing his unprofessional tweets. However, in the course of reaching this conclusion, the General Counsel's Office stated that the tweets may have been "protected, concerted activity" - "in warning the Charging Party to cease his inappropriate tweets, and then discharging him for continuing to post inappropriate tweets, the Employer made statements that could be interpreted to prohibit activities protected by" the federal labor law. This casual observation did not clearly follow from the law or the facts, as the comments were not directed to fellow employees, did not relate to the reporter's working conditions, and fell into the category of offensive communications that have not historically been protected.
In contrast, in May 2011, the NLRB announced that it would prosecute Hispanics United of Buffalo, a nonprofit social service agency, for firing five employees who engaged in a Facebook debate that began as a criticism about service to the public, and deteriorated into a commentary on working conditions. One worker posted a status update stating that the organization's employees did not do enough to help its clients and four other employees responded to the status update, defending their job performances and complaining about staffing levels and workloads. The employer fired all five of the employees who participated in the posts, contending that the workers had harassed a fellow employee. The NLRB argues that all the posts were "protected, concerted activity" and that the discharges are unlawful. This contention does not appear logical, as the posts - particularly the first one - were about the employer's service to the public, not terms or conditions of employment. The case went to trial before an administrative law judge on July 13, and the parties (and knowledgeable employers) are awaiting a decision.
The NLRB Hits The Brakes? The NLRB's more recent actions indicate that the agency may be backing down slightly from its initial broad view of social media posts as "protected, concerted activity." The Division of Advice issued memoranda in four separate cases dismissing charges filed by employees who were fired or disciplined for their social media posts.
In JT's Porch Saloon & Eatery, Ltd., a bartender conveyed to his stepsister via Facebook that he had not had a raise in years and was working without tips. He also described his customers as "rednecks" whom he hoped "choked on glass as they drove home drunk." The employer fired the bartender when it saw the Facebook posts. The NLRB dismissed the bartender's charge. Although it could have done so based on the tasteless comments about the bar's customers, as in Arizona Daily Star, instead, the Board found that the employee "did not engage in any concerted activity," as the online complaints were never discussed with other employees and other employees did not respond to the posting. This is a promising case, as it appears to break away from the AMR notion that any social media post about work is "concerted, protected activity."
In another case, Martin House, an employee for a mental health service provider, in an online conversation on Facebook with non-employees, said it was "spooky" working in a "mental institution." A former client of the provider, who was a Facebook "friend" of the employee, saw the post and contacted the employer, who terminated the employee. The NLRB found no basis to issue a complaint because the postings did not mention any terms or conditions of employment, were not discussed with other employees, and induced no comments or responses from other employees.
In Wal-Mart, a customer service representative posted disparaging comments about her manager and Wal-Mart on Facebook (reminiscent of AMR), including the phrase "Wuck Fal-Mart." Two co-workers responded with their own complaints about the company, reminiscent of Hispanics United. The employee received a disciplinary warning for her post, and she filed a Board charge. Remarkably, the NLRB dismissed the charge, finding that the post was not an effort to induce employees to engage in group action and that the co-workers' comments were only "individual gripes."
On August 9, 2011, in Sagepoint Financial, Inc., the Division of Advice found that an employer did not violate the federal labor law when it fired an employee over Facebook posts that criticized the employer (sometimes with profane language) and triggered fellow employees' postings critical of working conditions, because the employee did not engage in "protected, concerted activity." The employee voiced complaints on his Facebook page and indicated that he was "gunning" for a promotion. Even after he was ordered to stop, the employee continued to post complaints to Facebook, including one referring to his manager as a "bitch." The employer again instructed the employee to stop posting disparaging comments about the company and its employees. He continued to post inappropriate comments, including a not-too-veiled reference to "going postal." After months of inappropriate posts and repeated warnings, the employer fired the employee. The NLRB's Division of Advice found that the posts were not "concerted" because they were not made in order to advance a larger cause, but were instead only an expression of the individual employee's feelings. Some of his co-workers participated in discussions induced by the posts, but they were characterized as only offering sympathy or amusement; they did not discuss common concerns about the manager. This reasoning appears to be a direct repudiation of AMR and, to some extent, Hispanics United.
General Counsel's Report Claims More Measured Approach. The mere number of social media cases is significant. On August 18, 2011, the Acting General Counsel of the NLRB released a report summarizing 14 different NLRB cases involving social media. Each had been submitted to the Division of Advice for consideration. In four cases involving employees' use of Facebook, the Division found that the employees were engaged in "protected, concerted activity" because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter, the Division found that the employee's activity was not protected. Although several cases concluded social media policies were unlawfully overbroad, one employer's policy restricting its employees' contact with the media was upheld.
Practical Advice. While the General Counsel's report and some of the more recent cases present a more hopeful outlook that a social media case may be defended, the risk of aggressive prosecution by the NLRB remains. Despite the confusion, some guidelines have emerged:
- An employee's social media use is likely to be considered "protected, concerted activity" if the posts: (a) involve discussions of terms and conditions of employment and (b) involve or are directed to fellow co-workers to invite or induce further work-related action. Personal "gripes" and bald disparagement are unlikely to be protected.
- Online postings that appear to be a "direct outgrowth" of earlier employee discussions or complaints are more likely to be viewed as "protected, concerted activity." In some cases where the NLRB found social media use to be protected, the online discussions followed face-to-face employee discussions or shared concerns about working conditions.
- Even comments that the employer considers "inappropriate" may be protected.
- Employer policies that are narrowly focused to address lawful ends are more likely to be found lawful. For instance, the Division of Advice found that an employer's policy that prohibited employees from pressuring their co-workers to connect or communicate with them through social media was valid as it "was narrowly drawn to restrict harassing conduct and could not reasonably be construed to interfere with protected activity."