American Bar Association

The NLRB's Evolving Stance on Regulating Employee Social Media Use

By Susy Hassan
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Let's say your company has just learned that an employee has been exchanging work-related gripes with his coworkers on Facebook, including a number of offensive comments about his supervisor. These postings violate your company's social media policy, which prohibits employees from making disparaging comments about the company, its supervisors, or coworkers. Management wants to terminate the employee on the spot. Anything you need to be worried about as general counsel?

Although it may seem counter-intuitive, terminating an employee in this context could lead to liability under the National Labor Relations Act (NLRA), even if the posts are both disparaging and profane.

The NLRA is a federal law that grants employees the right to unionize, bargain collectively through representatives, and otherwise engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Notably, it applies equally to non-union employees-and the National Labor Relations Board (NLRB) has, in fact, recently taken enforcement action against non-unionized employers for interfering with employee NLRA rights. Although these protections have been in place since the 1930s, they have recently received heavy media coverage in the legal community inlight of the NLRB's new focus on applying them to the modern workplace, where social media use has become ubiquitous.

This article tracks cutting-edge developments under the NLRA as it relates to limiting an employer's ability to regulate employee social media use, whether by implementing policies to that effect or by taking disciplinary action on the basis of such use when doing so runs counter to employee rights under the act.

Regulating Employer Social Media Use

The law governing the extent to which an employer can regulate employees' use of social media as a forum for work-related gripes is far from clear, but is quickly being developed. It has become a particularly hot topic in the last year, in large part because the NLRB has been devoting significant attention to the issue. In the past few months, there have been three significant developments in this area of law that provide guidance on the interrelation of social media use and employee protections under the NLRA.

First, on August 18, 2011, the NLRB's Office of the General Counsel released a report discussing the outcome of 14 cases its Division of Advice has investigated this year involving social media use in the employment context. While the report does not reflect actual decisions of the NLRB, it does indicate the thinking of the NLRB's chief attorney who sets guidelines for what cases will be presented to the NLRB for litigation and decision.

Second, on September 2, 2011, an NLRB administrative law judge (ALJ) issued the first post-hearing decision regarding employee social media use and NLRA rights in a case that was also the subject of the general counsel's report. This recent decision, Hispanics United of Buffalo, Inc., NLRBALJ, No.3-CA-27872 (Hispanics United), was decided against the employer and resulted in the ordered reinstatement of five employees who were found to have been unlawfully discharged for their use of social media to discuss the terms and conditions of their employment.

Third, on September 28, 2011, another ALJ decision was issued on this topic. In Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, NLRBALJ, No. 13-CA-46452 (Knauz BMW), an employee was held to have engaged in protected, concerted activity when he complained on Facebook about the quality of food served at a company promotion event. The ALJ additionally ruled on whether particular personnel policies adopted by the employer were invalid infringements on its employees' NLRA rights.

Taken together, the two ALJ decisions and the August NLRB report shed light on two major issues in this area of law: (1) When does employee social media use constitute "protected concerted activity" under the NLRA?; and (2) Where is the line drawn between a valid and invalid employer social media policy?

Protected Concerted Activity

Pursuant to section 7 of the NLRA, employees have the right to communicate with one another about the terms and conditions of their employment. When such a communication qualifies as protected "concerted activity," an employee cannot legally be disciplined for partaking in it. In the context of social media, the question is when a particular use, such as a Facebook posting, falls under the ambit of section 7's definition of protected "concerted activity."

NLRB Office of Advice

Six of the decisions chronicled in the general counsel's report focused on this issue and offer some guidance as to what kinds of social media use may qualify as protected activity. To begin with, social media use is more likely to qualify as protected concerted activity where the employee discusses the terms and conditions of his or her employment in a manner that is meant to induce or further group action. The general counsel appears more inclined to characterize social media use in this fashion when it is either directed to fellow co-workers or grows out of an earlier discussion about terms and conditions of employment among co-workers. For example, in the third case summarized in the general counsel's report, an employee was terminated for posting photographs and commentary on his Facebook page that criticized a sales event held by the employer. The report indicates that, despite the fact that the employee "posted the photographs on Facebook and wrote the comments himself," the social media use qualified as concerted because the employee was "vocalizing the sentiments of his coworkers and continuing the course of concerted activity that began when the salespeople raised their concerns at the staff meeting."

On the other hand, employee social media use is unlikely to rise to the level of protected concerted activity where it is best characterized as an individual complaint about working conditions specific to the employee, and is not directed to co-workers or meant to induce group action. For instance, in the sixth case summarized in the general counsel's report, the board concluded that an employee's Facebook post complaining about the employer's tipping policy in response to a question from a non-employee did not amount to protected concerted activity. Although the employee was discussing the tipping policy, a term or condition of his employment, the board found no evidence of concerted activity because the employee did not discuss the posting with his coworkers, none of them responded to the posting, there had been no employee meetings or any attempt to initiate group action regarding the tipping policy, and the posting did not grow out of the employee's conversation with a co-worker.

The report also suggests that employee comments that are "maliciously false," a seemingly high standard, will not be protected under the NLRA and that offensive or inappropriate comments about an employer's clients are also unlikely to be protected. For instance, in the eighth case summarized in the general counsel's report, the board concluded that an employee's Facebook posts referring to the employer's mentally disabled clients did not qualify as protected concerted activity, not only because the conduct was not concerted, but because the posts "did not mention the terms or conditions of employment" and were better characterized as communications to her "personal friends about what was happening on her shift."

These principles are further developed in the two published decisions recently issued by NLRB administrative law judges: Hispanics United and Knauz BMW.

Additional Resources

For other materials on this topic, please refer to the following.

Business Law Today

Keeping Current: Social media
Retaining and Supervising Social Media Communications under New FINRA Regulatory Notice 11-39
By Philip J. Favro
November 2011

Hispanics United ALJ Decision

In Hispanics United, an employee of a small nonprofit had an altercation with a co-worker who felt the organization's employees were not doing enough to help their clients. The employee decided to vent her frustrations on Facebook, posting: "Lydia Cruz, a coworker feels that we don't help our clients enough . . . I about had it! My fellow coworkers how do you feel?" Several co-workers responded to the post, joining in the employee's sentiment, and a vigorous discussion ensued. The employer caught wind of the posts when Lydia reported them, complaining that she felt bullied and harassed. The employer promptly terminated the five employees who participated in the Facebook discussion, and shortly thereafter, found itself accused of violating the NLRA.

The general counsel investigated the case, and concluded that the terminations violated the five employees' rights under the NLRA. Consistent with this conclusion, the ALJ's opinion explained that the terminations were unlawful because the social media use qualified as protected, concerted activity in that it was discussions between co-workers about the terms and conditions of their employment. The employer was ordered to reinstate all five employees.

The opinion highlights, among other things, that an employer is only liable for violating an employee's right to engage in concerted activity where it is established that the employer in fact knew of the "concerted nature of the activity." Further, the case confirms a focal point of the general counsel's report: that "individual action is concerted so long as it is engaged in with the object of initiating or inducing group action" and that the "object of inducing group action need not be express." Lastly, by citing to established NLRB precedent outside the social media context, Hispanics United is a good reminder that while the medium of communication is a new one, much of the substantive analysis in the social media context remains the same.

Knauz BMW ALJ Decision

Knauz BMW is also consistent with the themes developed in the general counsel's report. Here, the employer, a BMW dealership, hosted a promotional event to introduce a new car model and catered the event with a hot-dog cart. Many employees were upset by the catering selection, concerned that it was inappropriately inexpensive and would have a negative impact on employee sales and commissions. One employee took his complaints to Facebook, and posted a picture of the hot-dog cart along with sarcastic commentary about the dealership's decision to go "All Out" for "the most important launch of a new BMW in years." The employee was terminated and the NLRB began an investigation, ultimately leading to the issuance of an ALJ opinion.

The ALJ found that the employee's social media use was protected, concerted activity because it concerned the terms and conditions of employment; discussed a group complaint (which had been previously discussed with other employees) as opposed to an individual gripe; and despite taking a "sarcastic" and "mocking" tone, was not so disparaging so as to lose protected status. Again citing to NLRB precedent outside the social media context, the opinion echoes a guideline in the general counsel's report: "[u]npleasantries uttered in the course of otherwise protected concerted activity does not strip away the Act's protection."

Although the employee's use of social media qualified as protected concerted activity, the employee's discharge was held not to be unlawful under the NLRA because the ALJ found that he was terminated for unrelated misconduct. However, the employer was not let off the hook entirely, as the NLRB also took issue with the relevant personnel policies in place at the time of the termination.

Employer Social Media Policies

The second major issue in this area of law relates to where the line is drawn between a valid and invalid employer social media policy. The report suggests that policies will be found to be invalid where they are overbroad, in the sense that they would effectively prohibit employees from engaging in protected activity. For example, the general counsel found a policy overbroad where it prohibited "inappropriate discussions" about the company, its managements, or its employees because this prohibition encompasses protected concerted activity. Similarly, in Knauz BMW, a policy stating that "no one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership" was held to be unlawfully overbroad because the term "disrespectful" in the context of union activity seemed "inherently subjective" and was, therefore, restrictive of employee rights under the NLRA. On the hand, the ALJ held that another policy challenged in Knauz BMW was permissible. That policy stated: "A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers." The ALJ held that this policy did not violate the NLRA because it could be reasonably interpreted to protect the relationship between the employer and its customers, rather than restricting employee rights.

Employers should not only avoid overbroad prohibitions that could be interpreted to prohibit protected concerted activity, but should also consider including a disclaimer in their social media policies specifically indicating that none of the prohibitions contained in their policy should be interpreted to interfere with employee rights under the NLRA.

Conclusion

Whether employee social media use is considered protected concerted activity, and whether an employee social media policy runs counter to the NLRA, is a fact-intensive issue and requires analysis on a case-by-case basis. However, as the general counsel investigates more cases and continues to issue guidance, and as the NLRB continues to issue case decisions, the law in this area will quickly develop and produce more tangible guidelines for employers to consider.

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