Employers in the hospitality industry, because of the potential negative impact on business, must be particularly sensitive to comments by employees in social media vehicles such as Facebook or Twitter regarding the nature and quality of the operations in which they work. To the extent to which employers establish and enforce policies regarding employee postings on social media vehicles, they also must be cognizant of employee rights under Section 7 of the National Labor Relations Act ("Act") to engage in protected concerted activities, which may include certain social media postings. For all of the press about the National Labor Relations Board and social media policies, until recently there has been no published social media decision as to how exactly the Board or its administrative law judges (ALJ's) will apply the Act to this new medium. The first ALJ decision is in, and it may be cause for concern if the NLRB upholds it.

The Early Guidance on Social Media

An employee's right to engage in protected concerted activity has been interpreted to protect, among other activities, certain communications by and between employees for the purposes of collective bargaining or other mutual aid or protection. Individual activity traditionally has been considered to be "concerted" so long as it is engaged in with the object of initiating or inducing group action. With the growth of social media, the Board's Regional Directors and its General Counsel have, when investigating unfair labor practice charges regarding social media postings, applied Board precedent over other forms of communication to the social media context in determining whether to issue a complaint.

The most common social media issues addressed by NLRB Regional Directors and the General Counsel involve allegations: (1) that an employer's policy restricting employee use of social media is illegal on its face because it is so overbroad it would discourage employees from exercising their Section 7 rights; and/or (2) that an employer unlawfully discharged or disciplined an employee because the specific language the employee's social media post constituted protected concerted activity, i.e., that employee's comments were concerted in nature (involved other employees) and the subject discussed involved wages and or other working conditions.

For example, in one recent case the NLRB General Counsel determined that a complaint should issue where an employer had allegedly illegally disciplined an employee for posting on Facebook comments regarding a customer event including a comment critical of the quality of the food and beverages served to the customers. In another recent case, however, the General Counsel declined to issue a complaint, finding that an employer legally terminated an employee (a bartender) for posting Facebook comments that, among other things, were critical of customers.

These early policy decisions regarding whether to issue complaints on social media cases, however, were not decisions by the Board itself. It is the Board, however, and not the Regional Directors or the General Counsel that ultimately decides what constitutes a violation of the Act and the Board has not yet had an opportunity to rule on a social media issue.

The First ALJ Decision: Hispanics United of Buffalo

The Board is now one step closer to finally getting to issue a social media decision, for on September 2, 2011, an Administrative Law Judge ("ALJ") issued a decision in Hispanics United of Buffalo, 3-CA-27872. If upheld by the Board, this decision would significantly expand the definition of what constitutes protected activity by an individual employee in the social media context. In Hispanics United of Buffalo, the ALJ ruled that an employer unlawfully terminated five employees who had posted comments on Facebook in response to a co-worker's complaint about their job performance. The co-worker complained to the employer that the employees had harassed her by the postings, and she allegedly even suffered a heart attack. The employees were terminated because the employer deemed the social media posts to constitute bullying and harassment in violation of its harassment policy.

The ALJ found the Facebook postings by the employees in reaction to the co-worker's criticisms of how they did their job to be protected concerted activity. The ALJ found nothing in the record that could create an argument that the postings had risen to the level of unprotected activity. He found no record evidence that the employees had actually harassed the co-worker in violation of the employer's policy, or that the employees' action had triggered a heart attack.

The ALJ further rejected arguments that the comments were not concerted because the employees were not trying to change their working conditions or communicate their concerns to the employer. The ALJ equated the posting to employees discussing their wages with each other, a long-recognized concerted activity, or employees talking together as part of a first step towards taking group action.

While the ALJ's ultimate conclusion may be correct, critically the ALJ relies in part on Parexel International LLC, 356 NLRB No. 82 (Jan. 28, 2011), in which the NLRB broadly expanded the scope of "concerted" activity. Prior to Parexel, the Board had long held that for an activity to be "concerted" the activity must "be engaged in or with the authority of other employees, and not solely by and on behalf of the employee himself." In Parexel the Board found that the employer had illegally terminated an employee despite concluding that the employee had not discussed her complaint with any other employees or indicated that she was speaking for anyone other than herself. The Board found the violation on the basis that the individual employee might at some future date possibly seek to include other employees in her complaint.

Thus, if exceptions to Hispanics United of Buffalo are filed with the Board, and the Board expands its Parexel rationale to the social media context, hospitality employers will find it that much more difficult to properly respond to employee social media postings about the employer — including negative comments regarding its operations and services.

Best Steps Forward

Notwithstanding the current lack of total clarity in the law regarding the extent to which the Act protects employee social media postings concerning their employer or work-related issues, hospitality employers should develop carefully crafted prophylactic policies in order to properly and quickly respond to inappropriate postings by employees. Those policies should carry disclaimers recognizing employee rights to engage in protected concerted activity under the NLRA — although how far such disclaimers will go is open to question. Employers should not forget the other legal and practical issues of social media policies addressed in a previous article, click here. Last and certainly not least, before disciplining any employee for postings to a social media site employers should consult with counsel to insure that the posting are not protected concerted activity.

Immigration Update:

On September 7, a broad group of H-2B employers and trade associations sued the Department of Labor in Louisiana regarding the H-2B wage increases scheduled to go into effect on September 30. The plaintiffs are represented by Seyfarth Shaw, along with the law firm Fisher & Phillips. The plaintiffs are alleging that DOL failed to comply with the Administrative Procedure Act in issuing the regulations mandating the wage increase. Every H-2B employer will see wage rates increase under the new rules. Many H-2B employers are facing mandatory increases of 50 and 60%, with some being required to pay wage increase of more than 120%. The plaintiffs are seeking an injunction to block the rule from going into effect on September 30.