Since the famous “Facebook firing” complaint in late 2010, many observers have worried that the majority-Democrat National Labor Relations Board’s (“NLRB” or the “Board”) social media focus was an attempt to establish pro-union, anti-employer precedent, giving employees free rein to disparage and criticize their employers online. However, both the Board’s acting General Counsel and the Division of Advice recently expressed views on this issue to suggest that these initial fears may have been overblown.
Background: The “Facebook Firing” and other Board Complaints
The Board has addressed social media issues over the past few years,1 but its complaint in American Medical Response of Connecticut, issued in October 2010, marked the inception of a trend in which the Board and its acting General Counsel, Lafe Solomon, enhanced their focus on these issues.2 In AMR Connecticut, the complaint alleged that the employer ambulance service unlawfully terminated an employee for criticizing her supervisor on Facebook by referring to her supervisor as a “scumbag” and a “17” (the employer’s internal code for a psychiatric patient). The complaint characterized these postings as protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA” or the “Act”), which protects employees’ rights to engage in concerted activity to bargain collectively and to engage in other mutual aid or protection. The complaint further alleged that the employer had implemented an overly broad blogging and internet posting policy.
The employer in AMR Connecticut reached a settlement with the Board in February 2011, agreeing to revise its policies. Thereafter, in May of this year, the Board issued two social media related complaints against non-union employers in Hispanics United of Buffalo, Inc. and Knauz BMW.
A recent report from the acting General Counsel’s office and several recent memoranda from the Division of Advice should allay much of the uncertainty surrounding the Board’s focus on social media and the previous complaints referenced above.3
The Board evaluates social media policies under existing labor law.
Although it does not contain any broad policy statements, the recently published “Report of the Acting General Counsel Concerning Social Media Cases” reveals that the Board’s focus on social media does not represent a major doctrinal change in federal labor law. 4 Rather, the Board applies well-settled law in the new context of social media. This clarification benefits employers by allowing them to evaluate their social media policies and to enforce the policies as modified.
As the August 18, 2011 report explains, social media policies are governed by well-settled standards. For example, a social media rule or policy will violate Section 8(a)(1) of the Act if it would “reasonably tend to chill employees in the exercise of the Section 7 rights.”5 To determine if a social media policy would have such an effect, the Board applies the usual two-step test established in Lutheran Heritage Village-Livonia, first examining if the rule explicitly restricts protected activities and, if not, examining whether: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.6 Not surprisingly, the Board is likely to apply these criteria to strike employer policies that broadly prohibit online discussion of their employment without examples or limiting definitions to reveal that the prohibitions do not apply to activity protected by Section 7.7 The Board will also strike down an otherwise lawful social media policy if the employer relies upon it to punish or prohibit protected concerted activity.8
Employers may not prohibit employees from identifying or depicting their employer.
The complaint in AMR Connecticut alleged that the employer unlawfully maintained a blogging and internet posting policy, which prohibited employees from posting any photos depicting the company in any way. As the acting General Counsel’s report emphasized, the concern in this case was the policy’s overbreadth - the policy was too broad because an employee would construe the policy to prohibit a range of protected activity. As the report explained, the policy “would prohibit an employee from engaging in protected activity; for example, an employee could not post a picture of employees carrying a picket sign depicting the company’s name, or wear a t-shirt portraying the company’s logo in connection with a protest involving terms and conditions of employment.”9 In another case discussed in the acting General Counsel’s report, the Board found unlawful a policy prohibiting employees from using the company name, address, or other information on their personal profiles on social media sites.
Employee social media activity may be unprotected.
Perhaps the most employer-friendly lesson from the Board’s recent publication is its clear signal that social media does not provide employees a free pass to disparage or criticize their employers. The acting General Counsel’s report’s discussion of Hispanics United of Buffalo, illustrates the applicability of well-settled labor law to complaints involving employee discipline for social media use. As the Board’s analysis demonstrates, the threshold consideration is whether the employee’s online complaints are protected concerted activity under the Act. The Board will typically evaluate this issue under the Meyers Industries cases, which hold that an activity is concerted when an employee acts “with or on the authority of other employees, and not solely by and on behalf of the employee himself.”10
As the report further explains in its discussion of Hispanics United, the next inquiry is whether the employee’s comments lost the Act’s protection. Because the “finding of protected activity does not change if employee statements were communicated via the internet,” the report demonstrates that this inquiry is also unchanged by the social media context.11 Rather, the Board will evaluate the employee’s comments under either Atlantic Steel, which applies when an employee has made public outbursts against a supervisor that are so “opprobrious” as to lose the Act’s protection, or Jefferson Standard, which applies where an employee has made allegedly disparaging remarks about an employer or its product to third parties that are so “disloyal, reckless, or maliciously untrue” that they lose the Act’s protection.12
The General Counsel's report, as well as a recent decision by a Board Administrative Law Judge, found that the employees' comments in Hispanics United were protected by the Act. However, in three memoranda from the Division of Advice, published in quick succession during the summer of 2011, the Board also acknowledged the limits of the Act's protection for employee social media activity. As these memoranda demonstrate, Section 7 only protects online activities that meet the Board’s definition of concerted activity. Accordingly, the Division of Advice applied Board precedent to find that employers had acted lawfully in disciplining or terminating employees for the following online, work-related activity:
- A bartender’s Facebook conversation with his sister complaining about his pay and his employer’s tip policy. The bartender’s posts referred to the employer’s clientele as “rednecks” and said he hoped they choked on glass as they drove home drunk. The Board concluded that although the bartender had discussed the employer’s tip policy with a coworker several months before his posting, his online complaint did not “grow out” of the prior conversation, and was never discussed with his coworkers. Accordingly, the bartender’s Facebook activity was not concerted and, therefore, not protected by the Act.13
- A mental health facility employee’s Facebook posts during her overnight shift remarking that it was “spooky” working at night in a “mental institution,” and commenting that a nearby resident might be hearing voices. Although none of the employee’s coworkers were her Facebook friends, the employer fired the employee when a former client reported the posts. Noting that the posts “did not even mention any terms or conditions of employment,” and that the employee was not seeking to induce or prepare for group action, the Board found the posts unprotected by the Act.14
- A Wal-Mart employee’s Facebook posts complaining about getting “chewed out” by his supervisor, and profanely suggesting that he and other employees were going to quit if Wal-Mart did not revise its policies. A coworker responded that the employee should “hang in there,” but the Board concluded that this response to the coworker “viewed [the original posts] to be a plea for emotional support” and not an effort to induce group action. Accordingly, the post was “an individual gripe” and, therefore, not concerted activity the Act protects.15
Recommendations for Employers
Although these recent clarifications provide valuable guidance that should allow employers to evaluate social media issues more accurately, employers should not start adding the Board as a friend on Facebook just yet.16 The Board’s continued interest in pursuing social media cases demands continued vigilance. To minimize legal risks in addressing social media, employers should take the following steps.
- Implement a defensible social media policy: Avoid broad limits on employees’ rights to discuss the terms and conditions of their employment, including wages and disciplinary actions. Limit any broad language through examples, definitions, or disclaimers carving out exceptions for activity protected by Section 7.
- Do not prohibit employees from depicting or identifying the company online. The Board has found these prohibitions unlawful. Rather, consider requiring employees to identify their affiliations and disclaim any authority to speak for the Company.
- Evaluate social media problems under the appropriate labor law precedent. The Act only protects social media activity if it qualifies as “concerted” and has not otherwise lost the Act’s protection. An initial determination regarding an online comment’s protected status is essential before making a disciplinary decision.