Employees have always been prone to complain, and employees in the retail industry are no different. What is different now though, is that your employees now have many more places to air their concerns, and they have the ability to reach a wider audience with the click of a mouse or the tap of a key. Simply put, with the proliferation of social networking, your employees have numerous platforms from which they can bemoan their workaday frustrations. A flurry of recent unfair labor practice cases suggest that if you discipline your employee for making disparaging comments about your Company on social media sites such as Facebook and Twitter, you may be violating his or her right to engage in "protected concerted activity" under the National Labor Relations Act ("NLRA" or "Act"). The Board has not issued any decisions to date, but rather all the cases have either settled or they are currently pending trial before an Administrative Law Judge.

Social Media and Protected Concerted Activity

Over the past few months, the Office of the General Counsel ? the Board's prosecutorial arm ? has been issuing complaints against employers alleging either that (i) the Company's broad social media policies violate their employees' rights under the Act because they have a chilling effect on their right to communicate about the terms and conditions of their employment, or (ii) employers have violated their employees' rights under the Act by disciplining employees for disparaging the Company through social media.

Previously, the General Counsel's Division of Advice had upheld employers' broad social media policies even when they prohibited, among other things, "[d]isparagement of company's or competitors' products, services, executive leadership, employees, strategy, and business products." In one 2009 case, the Division of Advice concluded that the policy was legal because it was part of a larger policy prohibiting egregious conduct such as discussing the employer's proprietary information, explicit sexual references, disparagement based on race or religion, obscenity, profanity, or references to illegal drugs. The policy also stated explicitly that it was designed to protect the employer and the employees' interests rather than to "restrict the flow of useful and appropriate information." The Division of Advice determined that the policy would not "reasonably tend to chill employees" in the exercise of their rights to protest working conditions or advocate for unionization and the policy was not promulgated in response to union organizing activity or applied to deter such activity.

However, now the General Counsel's Office appears poised to hold that employer policies which bar "slanderous or detrimental" statements about the employer violate employees' rights because such statements might be protected by the NLRA.

Two recent cases which would have tested this issue ? American Medical Response of Connecticut, Inc. and Student Transportation of America, settled before they could reach a hearing so the Board did not get a chance to rule on this issue. In the Student Transportation case the employer had a social media policy that prohibited "[t]he use of electronic communication and/or social media in a manner that might target, offend, disparage, or harm customers, passengers or employees, or in a manner that might violate any other company policy." (emphasis added). We will have to stay tuned to see how the Board rules on this issue in the near future!

The NLRB has also recently cracked down on employers who discipline their employees for making disparaging comments on social media sites. In Karl Knauz BMW, an employee complained on his Facebook page about the food and drinks BMW served to customers at an employer sponsored sales promotion, because he apparently believed that hot dogs and bottled water would inhibit sales and commissions. After learning about the negative post, BMW fired the salesman. When the salesman filed an unfair labor practice charge challenging his termination, the Board issued a complaint against BMW finding that the discharge might deter other employees from engaging in protected concerted activity ? namely publicly complaining about sales events and their commissions.

In another recent case, Hispanics United of Buffalo, an employee in a non-union facility contended in a Facebook post that her fellow workers did not do enough to help their clients. Those co-workers responded angrily and the employer terminated them because they were harassing the employee who had criticized them. The Board issued a complaint against the employer alleging that the discharges were illegal because the Facebook discussion was protected concerted activity since it involved a conversation among coworkers about their terms and conditions of employment, including job performance and staffing levels.

What Does This Mean for Retail Employers?

Since none of these social media cases has resulted in a Board decision, there is unfortunately no clear guidance yet for retail employers to follow with respect to whether they can issue broad non-disparagement policies and discipline employees for violating them. Nonetheless, there are several key points that you should take away from the NLRB's recent spate of social media cases:

Retail employers should be aware of the General Counsel's heightened interest in challenging social media policies if it is not clear that they do not cover complaints or statements regarding employment terms and conditions, or communications about unionization. Common policies that are vague or overbroad are easy potential targets, regardless of the employer's intent in implementing them.

Retail employers should proceed with caution before disciplining employees for making disparaging comments on social media sites since there is no clear directive yet about what is, and what is not, speech pertaining to terms and conditions of employment.

It is clear that the NLRB has decided to focus on social media issues in both union and non-union workplaces alike. As the forums for online speech continue to grow, and more and more employees begin to post work-related comments on social media sites, both union and non-union retail employers should be careful before disciplining employees for such activity.

Most fundamentally, retail employers should review their policies, including those regarding confidential information, electronic media, social media, blogging, internet, solicitation, e-mail usage, customer communication, bulletin board posting, internal grievance, non-disparagement, off-duty conduct, and wage discussion policies. That said, we do not know yet which policies will pass muster under the current Board, and we will keep you posted when the Board issues a decision in any of the pending cases.