Employers have always had to grapple with how to respond to an employee's questionable off-duty conduct. The advent of social networking sites has provided employers with an even greater challenge, because they face the dilemma of being exposed to liability when they fail to act or when they react inappropriately. On one hand, if an employer discovers that an employee is sexually harassing or making discriminatory comments about a coworker on a social networking site, the employer must take action or be prepared to respond to a complaint of unlawful discrimination or harassment from the coworker. On the other hand, when the employer disciplines the employee for what the employee tweets or posts on his or her Facebook wall, the employee will likely argue that communicating with colleagues and friends on Facebook, Twitter and other social media outlets is free speech or activity that is protected by the National Labor Relations Act (NLRA).

Courts and government agencies have tried to apply long-standing laws and principles to employees' cyberspace activities, but they are finding that "one size" does not fit all. The media has become fixated on cases that are pending before the National Labor Relations Board (the Board) that involve employees who have posted negative comments on social media sites about their employers and the workplace. These cases have received considerable attention because the Board has reprimanded several employers for disciplining or terminating employees who have made disparaging comments about their bosses or their working conditions. As a result of the intense media scrutiny, Acting General Counsel Lafe Solomon (the General Counsel) of the Board has sought to clarify when the NLRA will apply to situations in which the employers have disciplined employees for using social media to criticize their employers and the workplace.

On August 18, 2011, the Office of the General Counsel (the Office) issued a 24-page report that reviews the outcome of the 14 social media cases that the Board has investigated.

The Board considered in its investigations: (i) whether the conduct is concerted, protected activity under the NLRA; and (ii) whether an employer's restrictions on its employees' use of social media and the employer's efforts to prohibit its employees from speaking with the media are overly broad and are thereby in violation of the NLRA.[1]

Cases Involving Protected Concerted Activity

Nine of the cases before the Board involved employees who were disciplined for posting negative comments about their employers or their working conditions on Facebook or Twitter. Such postings on Facebook or Twitter will often constitute "protected concerted activity" under the NLRA. According to the report, the Board's test for "protected concerted activity" is whether the activity is "engaged in with or on the authority of the other employees, and not solely by and on behalf of the employee himself." Meyers Industries (Meyers I), 268 NLRB 493, 497 (1984).

In four of these cases, the Office found that the employees had engaged in protected concerted activity. The four cases involved: (i) a discussion initiated on Facebook by one employee to her coworkers regarding job performance and staffing levels in preparation for a meeting with the executive director; (ii) a posting on Facebook in which the employee made a negative remark about her supervisor to her coworkers in protest of actions taken against her by her supervisor; (iii) an employee's complaints about the employer's sales event that the Board viewed as part of a series of employee discussions concerning sales commissions; and (iv) a discussion among coworkers on Facebook in response to the employer's failure to withhold income taxes that resulted in employees owing money in taxes. In all instances, the discussions on Facebook occurred outside of the workplace after work hours on the employees' own computers. The Board found that the discussions stemmed from the employees' terms and conditions of employment and ongoing discussions with their coworkers and, thus, constituted protected activity under the NLRA.

In five other cases, the Office determined that the postings did not involve protected concerted activity because they did not involve working conditions and/or they did not seek out other employees to participate in work-related discussions. These cases involved: (i) an employee's Twitter postings about a newspaper's copy editors in which the employee never discussed his concerns with any of his coworkers; (ii) a bartender who complained to a relative, not a coworker, about the employer's tipping policy; (iii) an employee who posted comments on a U.S. senator's Facebook page criticizing the government's award of federal grants to four fire departments; (iv) an employee who engaged in a conversation with her friends, not her coworkers, on her Facebook page during work hours in which she made disparaging remarks about the patients at a facility for mentally disabled clients; and (v) an employee who posted profanity about her supervisor on her Facebook page that the Board viewed as an "individual gripe" as opposed to a collective discussion among the employee's colleagues.

As evidenced by the outcome of these cases, the Board will take into account whether the employee has used company computers or made the comments at issue while using the employee's own equipment outside of the workplace during nonwork hours. The report also makes clear that an employer cannot spontaneously discipline or terminate an employee when it discovers that the employee has written pejorative comments about management or the employee's working conditions on a social media site. The employer must investigate and consider whether the comments arose from or are a continuation of discussions with the employee and other coworkers concerning protected topics under the NLRA.

Cases Involving Employers' Policies on Employees' Use of Social Media

As the report explains, an employer policy on the use of social media is unlawful when the restrictions prevent employees from openly publishing their complaints about a company's workplace policies or mistreatment of employees. In addition, an employer's social media policy cannot prohibit employees from using the company name or other information on their social networking profiles without a compelling reason, and even then, the policy must be narrowly tailored to address only the specific reason for the restriction. A policy cannot prevent employees directly or indirectly from putting the company name on leaflets or other paraphernalia to protest their dissatisfaction with their current working conditions.

In three of the four cases reviewed, the Office concluded that employers had implemented overly broad social media policies that restricted what employees could post online, thereby interfering with their rights to engage in protected concerted activity and, thus, violating the NLRA. Those three cases involved: (i) a hospital that prevented employees from using social media in any way that would hinder the privacy and confidentiality expectations of others or posting anything that would embarrass, harass or defame the hospital, hospital employees or members of the hospital; (ii) an employer's handbook that prohibited employees on their own time from chatting about company business, revealing sensitive information about their employers, or posting comments or pictures involving the company or employees that could be viewed as inappropriate; and (iii) an employer's policy that prevented employees from using photographs or personal information of coworkers, clients, partners or customers without their prior consent as well as company logos and photos of store, brands or products.

In the fourth case, the employer's policy restricted employees from speaking with the media and designated the public affairs office of the company to be responsible for all external communications. The Office noted that this policy was considered lawful because it prohibited employees from speaking with the media on behalf of the company. The Office, however, noted that employees do have the right to speak with the media about their terms and conditions of employment, which this policy did not prohibit.

As the report makes clear, the Board will limit the application of employers' social media policies when they interfere with employees' right to engage in protected, concerted activity. To ensure their policies comply with the NLRA, employers should tailor their policies to protect the company's proprietary information and its reputation in commerce. Employers should also review their policies and revise any rules that have blanket prohibitions against employees posting in cyberspace comments about management and their working conditions.