Today, employers are faced with a myriad of issues regarding employees’ use of social media. This includes the ubiquitous Facebook, which, among other things, has become the modern equivalent to a water cooler, albeit one accessible to the world and captured forever in indelible electronic ink. To that end, many employers have created social media policies or have made various employment decisions based on employees’ use of social media. However, employers must take care that such policies and acts do not violate Sections 7 or 8(a) of the National Labor Relations Act (NLRA) by restricting or chilling the rights of employees to engage in or discuss concerted action.
In July 2011, the National Labor Relations Board (NLRB) issued three advice memoranda that clarified its position on acceptable workplace social media policies.
Previous NLRB Decisions
The NLRB previously confronted the issue of whether social media policies potentially violate Section 7 of the NLRA in a 2009 advice memorandum regarding Sears Holdings (Roebucks), Case 18-CA-19081 (December 4, 2009). In Sears, the International Brotherhood of Electrical Workers (IBEW) filed a petition to represent Sears’ technicians. In the course of the campaign, IBEW used various forms of social media such as Facebook and MySpace as well as listservs and a tailored website. On June 2, 2009, Sears issued a social media policy which provided, among other things, that employees may not use social media for “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.” IBEW then filed a charge, alleging that Sears’ policy violated Section 7. Upon review, the NLRB concluded that Sears’ policy could not reasonably be interpreted to prohibit activity protected by Section 7 because, in context, the policy is reasonably read only to prohibit “online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints about [Sears] or working conditions.”
In sharp contrast to Sears, in October 2010, the NLRB brought a complaint against American Medical Response of Connecticut, Inc. (AMR) in connection with a charge brought by the International Brotherhood of Teamsters, Local 443 (IBT), American Medical Response of Connecticut, Inc., Case No. 34-CA-12576 (October 27, 2010). The complaint alleged that employee Dawnmarie Souza was unlawfully terminated for criticizing her supervisor on her personal Facebook page in violation of AMR’s social media policy, which prohibited “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” The complaint alleged that Souza’s action constituted protected concerted activity in alleged violation of NLRA Sections 7 and 8(a)(1) and (3). The case was then later settled, as part of which AMR agreed to narrow the scope of its social media policy.
July 2011 Memoranda
The three new advice memoranda issued by the NLRB in July 2011 illustrate the Board’s position that social media policies violate Section 7 and Section 8(a) only when the policies or practices specifically target concerted activity. In the three matters decided, the NLRB held that the complaints posed by employees on Facebook were not concerted activity, but were instead unprotected general personal complaints.
- In JT’s Porch Saloon, Case No. 13-CA-46689 (July 7, 2011), a bartender who, along with other co-workers, was upset about the employer’s tipping policy, posted his complaints on Facebook in response to an inquiry by a family member. The employee also referred to the employer’s customers as “rednecks” and posted that he “hoped they choked on glass[.]” The NLRB held that complaints were not concerted activities and therefore not protected by Section 7.
- In Wal-Mart, Case No. 17-CA-25030 (July 19, 2011), the NLRB held that an employee’s Facebook postings criticizing his manager was not concerted action, where the posting included vulgar terms for the manager and subsequent messages of support from fellow employees. The NLRB held that mere supportive comments by fellow employees were not enough to garner protection under Sections 7 and 8(a). Rather, to be covered, the NLRB concluded that such “[c]omments should look toward group action.”
- Lastly, in Martin House, Case No. 34-CA-12950 (July 19, 2011), the NLRB held that an employee’s Facebook posting criticizing the employer’s homeless facility residents was not concerted action protected by Sections 7 and 8(a), such that her termination for such postings did not violate the NLRA.
The NLRB’s July 2011 advice memoranda clearly indicate that an employer’s social media policy or practice only violates the NLRA when the policy or practice is used to stop or specifically target concerted activity. While employers may not prevent employees from using Facebook to organize, depending on the circumstances, employers do not have to tolerate disparaging remarks about their company, managers, other employees or customers simply because an employee makes that remark on Facebook or another social media site.