On August 18, 2011, the Acting General Counsel of the National Labor Relations Board (“NLRB” or “Board”) issued a report summarizing recent case developments arising in the context of social media. The cases cover emerging issues such as the protected and/or concerted nature of employees’ Facebook and YouTube postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. The report also summarized a case involving an employer’s policy restricting employee contacts with the media. A summary of the report follows below. All of the cases had been submitted to the NLRB’s Division of Advice for review.

  1. The Protected and/or Concerted Nature of Employees’ Facebook and Twitter Postings

The report discussed seven cases which explored the protected and/or concerted nature of an employee’s Facebook and Twitter postings.

In two cases, the Division of Advice concluded that the employee’s Facebook postings were protected concerted activity under the National Labor Relations Act (“Act”). In one case, employees were discharged for posting comments on Facebook relating to allegations of poor job performance expressed by one of their coworkers. The Division of Advice concluded that the discharged employees’ postings were protected concerted activity because the postings “directly implicated terms and conditions of employment and were initiated in preparation for a meeting with the employer to discuss matters related to these issues.” In another case, an employee was discharged for posting on his Facebook page photographs and commentary that criticized a sales event held by the employer. The Division of Advice found that the Facebook posting was protected concerted activity because it was a direct outgrowth of earlier discussions among employees, expressed the sentiments of a group of employees, and were related to the terms of conditions of employment since the sales event impacted sales, and therefore, their commissions.

In three other cases, the Division of Advice concluded that employee discharges over Facebook postings did not violate the Act. In one case, a bartender was discharged for posting a message on his Facebook page that referenced the employer’s tipping policy. Although the employee’s Facebook posting addressed his terms and conditions of employment, the Division of Advice found that the employee was not engaged in concerted activity because he did not discuss the posting with his coworkers, and none of them responded to the posting. In a second case, an employee who posted comments on her senator’s Facebook wall about her employer was also found not to have engaged in concerted activity. The Division of Advice reasoned that the employee did not discuss her posting with any other employee and there had been no employee meetings or attempt to initiate group action. Instead, she was merely trying to make a public official aware of the condition of emergency medical services in her state. In another case, an employee was disciplined for posting profane comments on Facebook that were critical of store management. The employee’s comments were limited to his Facebook friends, which were largely comprised of coworkers. The Division of Advice found that there was insufficient evidence of concerted activity because the employee’s comments expressed “an individual gripe” rather than a logical outgrowth of prior group activity or an effort to induce co-workers to engage in group action.

In two more cases, the Division of Advice found that an employee’s postings on Facebook or Twitter were not protected concerted activity. In the first case, an employee of a provider of mental health services was discharged for posting inappropriate comments on Facebook referencing the employer’s mentally disabled clients. As the employee did not discuss her Facebook posts with any of her fellow employees, and none of her coworkers responded to the posts, the Division of Advice found that the employee was not seeking to induce or prepare for group action, and her activity was not an outgrowth of the employees’ collective concerns. Rather, the employee was merely communicating to friends about what was happening on her shift. In the second case, the Division of Advice concluded that an employee who posted offensive tweets was not engaged in protected concerted activity. The employer—a newspaper—had encouraged employees to open Twitter accounts and to use social media to get news stories out. The employee was terminated for posting various tweets about homicides in the city, as well as criticizing an area television station. The Division of Advice found that the employee’s conduct was not protected and concerted; it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.

  1. The Coercive Impact of a Union’s Facebook and YouTube Postings

The report also discussed one case having to do with the coercive impact of a union’s Facebook and YouTube postings. In this case, union representatives visited a nonunion jobsite, interrogated three employees about their immigration status, videotaped the interrogation, and posted it on YouTube and the union’s Facebook page. The Division of Advice concluded that the union’s videotaped investigation violated Section 8(b)(1)(A) by entering the jobsite in a threatening manner, interfering with employee’s performance of their work, and coercively interrogating the employees in circumstances that reasonably would have led them to believe that they were in danger of being deported for immigration violations.  

  1. Social Media Policies and Rules

The report also included five cases about the lawfulness of an employer’s social media policies and rules. The policies in these five cases prohibited employees from conduct such as: (1) making disparaging, inappropriate, embarrassing, or harassing remarks about the employer, management, and/or coworkers; (2) depicting the employer in any media; (3) using any social media that may violate, compromise, or disregard the rights and reasonable expectations of privacy or confidentiality of any person or entity; or (4) using of the employer’s logos and photographs of the employer’s store, brand, or product, without written authorization. The Division of Advice found the policies at issue overly broad and that the policies violated Section 8(a)(1) and/or Section 7 of the Act.

However, the Division of Advice found that a policy that precluded employees from pressuring their coworkers to connect or communicate with them via social media was legal. This policy was lawful because it was sufficiently specific in its prohibition against pressuring coworkers and clearly applied only to harassing conduct.  

  1. Policy Restricting Employee Contacts with Media Found to be Lawful

Finally, the report discussed a case where the Division of Advice found that an employer’s rule restricting employee contact with the media was lawful. Here, the employer—a grocery chain— had a media relations and press interview policy in its employee handbook which required employees to maintain confidentiality about sensitive information and that the public affairs office should speak for the employer to deliver an appropriate message and avoid giving misinformation. The policy also prohibited employees from using cameras in the store or parking lot without prior approval. In addition, employees were directed to respond to all media questions by replying that they were not authorized to comment for the employer or did not have the information being sought. The Division of Advice found that this policy was lawful since it simply sought to ensure a consistent, controlled company message and limited employee contact with the media only to the extent necessary to effect that result.

While this report provides some needed guidance to employers, these cases will continue to arise and the law concerning social media usage will continue to develop. Given the evolving nature of the law concerning these media, and the fact-intensive nature of disputes concerning these issues, specific policies and issues should be reviewed with counsel.