– Re: FREE SPEECH - FIRST AMENDMENT
In Reply To
NLRB General Counsel's Office Releases Report on Social Media Cases
by Stefan Marculewicz on August 18, 2011
The National Labor Relations Board’s Office of the General Counsel has released a report (pdf) that summarizes the outcomes and reasoning behind the 14 cases decided within the past year involving employees’ use of social media and the legality of employers’ social media policies. The cases involved such social media platforms as Facebook, Twitter and YouTube, but the report also notes that social media includes text, audio, video, images, podcasts, and other multimedia communications that “enable people to communicate easily via the internet to share information and resources.” Of the cases detailed in the report, the NLRB’s Division of Advice (Division) found that four involved Facebook or Twitter posts that constituted “protected concerted activity;” five involved social media use that did not warrant NLRA protection; five dealt with employer social media policies that were found to be overbroad; one concerned an employer’s policy that was held to be valid; and one involved a union’s use of YouTube that was determined to be unlawful coercive activity.
While the report does not provide any hard and fast rules for employers, taken as a whole, the various decisions appear to establish the following guidelines:
•An employee’s social media use is likely to be considered protected concerted activity if the comments/posts: (a) involve the terms and conditions of employment; (b) constitute an “outgrowth” of an earlier discussion about the terms and conditions of work among co-workers; and (c) involve or are directed to fellow coworkers to invite or induce further action.
•The cases where the Division found that an employee’s Facebook or Twitter posts constituted protected activity involved topics such as job performance, staffing levels, protests of supervisory actions, criticisms of an employer’s promotional event that employees believed would negatively impact their sales commission; and shared concerns about income tax withholdings.
•In contrast, simple complaints about working conditions, especially directed to non-coworkers, were found to be undeserving of NLRA protection. In one case, the Division found that a bartender who made negative comments about his employer’s tipping policy on Facebook was not engaged in concerted activity because he directed his comments to a non-coworker, and made them by and on behalf of himself only. Similarly, an employee who posted a comment critical of her employer on her senator’s Facebook wall was not acting in concert with her fellow employees. Moreover, individual gripes about the workplace posted on Facebook or Twitter – even if such posts result in fellow coworkers chiming in – do not rise to the level of concerted activity. In one such case, a retail store employee made several complaints via Facebook about his store’s management. The comments were not specifically directed to fellow employees, even though some who read his posts expressed their support or condolences over his dissatisfaction. The Division found that his complaints were over his individual situation and were not aimed to induce group action, and therefore not protected.
•Facebook or Twitter postings that could be considered a “direct outgrowth” of earlier employee discussions or complaints are more likely to be viewed as protected, concerted activity. In the cases where the Board found the social media use to be protected, the electronic discussions were preceded by face-to-face employee discussions or shared concerns about working conditions.
•Even inappropriate comments can merit protection. In one case, an employee used profanity when referring to the company’s owners and questioned the employer’s ability to do paperwork correctly. The Board rejected the employer’s defamation claim, as “an alleged defamatory statement will not lose its protected status unless it is not only false but maliciously false” – a fairly steep hurdle.
•Offensive or inappropriate comments directed at an employer’s clients, however, are less likely to receive NLRA protection. In one case, for example, a reporter made inappropriate and unprofessional tweets on a work-related Twitter account. In other cases, a bartender and homeless facility worker made disparaging comments about their employers’ clientele. Such comments were not found to be protected.
•Social media policies must not be overbroad. In one case in which the Division found that an employer’s social media policy was overbroad and therefore unlawful, the offending policy included a provision that prohibited employees from posting pictures of themselves in any media, including the internet, that depicted the company in any way, including a company uniform or corporate logo. The Division found this to be overbroad in that it would effectively prohibit an employee from engaging in protected activity, such as posting a picture of employees carrying picket signs showing the company’s name or logo. In another case, an employer’s policy that prohibited “inappropriate discussions” about the company, management and/or coworkers was similarly found to be overbroad. Similarly, a policy that prohibited employees on their own time from using micro-blogging features to talk about company business on their personal accounts; from posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy; from disclosing inappropriate or sensitive information about the employer; and from posting any pictures or comments involving the company or its employees that could be construed as inappropriate was found to be overly broad, as it could reasonably be construed to prohibit an employee’s Section 7 rights.
•Employers should include limiting language in their social media policies. The Division found that social media and standards-of-conduct policy provisions that: (a) prohibited employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors; and (b) prohibited the use of language or action that was inappropriate or of a general offensive nature, and rude or discourteous behavior to a client or coworker to be unlawful because the policies failed to contain language informing employees that such provisions do not apply to Section 7 activity.
•Employers should make sure to define terms in their social media policy. In one case, the Division found that a provision in an employer’s social media policy that prohibited employees “from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to the privacy or confidentially of any person or entity” was overbroad because it “provided no definition or guidance as to what the Employer considered to be private or confidential,” and therefore could be interpreted as prohibiting protected employee discussion of wages and other terms and conditions of employment.
•Social media policies that are narrowly focused are more likely to be deemed lawful. In one instance, the Division found that an employer’s policy that prohibited employees from pressuring their coworkers to connect or communicate with them through social media was valid as it “was narrowly drawn to restrict harassing conduct and could not reasonably be construed to interfere with protected activity.” Similarly, the Division found that an employer’s rule that restricted employee contacts with the media was lawful, as the purpose of the rule was to ensure that only one person spoke for the company, and the rule could not be interpreted to prohibit employees from speaking on their own behalf with reporters.
While the NLRB Acting General Counsel’s Report has provided some guidance to help employers understand the parameters of employer and employee rights in connection with the use of social media, it is important to consider each situation individually. The laws governing social media and its interaction with the workplace are rapidly evolving and employers should maintain a constant vigilance to ensure that they are in compliance.
For more information on this Report, see Littler's ASAP: The NLRB and Social Media: General Counsel's New Report Offers Employers Some Guidance by Mark Robbins and Jennifer Mora.
Photo credit: Warchi