The NLRB is All Atwitter About … Social Media

The increased popularity of social networking websites has provided employers and employees with unprecedented avenues of communication amongst each other and with the rest of the world. Social media has provided employers with a seemingly limitless resource to reach existing and potential customers. At the same time, social media permits employees the same limitless reach – for better or worse.

Com­plaints that would have been contained to idle banter around the water cooler just a few years ago can now be posted on social media sites for the world to see.
Employers have been placed in the precarious position of trying to determine whether they can discipline or terminate an employee who has posted comments on a social media site that could damage the business’s reputation or have negative financial consequences. Many employers have adopted strict policies regarding social media in an attempt to prevent such postings before they happen. Not surprisingly, many employers have run afoul of the National Labor Relations Board in their efforts to protect their legitimate business interests. Employers beware: employees have the right to discuss wages and other conditions of their work with their co-workers via social media outlets under the National Labor Relations Act and there is not much an employer can do to curtail these rights.

The NLRB and Section 7 of the National Labor Relations Act The National Labor and Relations Board
The National Labor and Relations Board is a federal agency that receives 20,000 to 30,000 complaints from employees each year.1 If not otherwise resolved, and if the NLRB finds sufficient evidence to support the charge, the NLRB issues a complaint which usually results in a hearing before an NLRB administrative law judge. Increasingly, these judges are being charged with reconciling the interplay between an employee’s right to discuss wages and work place conditions and their use of social media. In 2010, 1,243 complaints were issued by the NLRB – some of which included novel allegations concerning employees’ use of social media.2 In fact, on April 12, 2011 the General Counsel for the NLRB issued a memorandum stating that all “[c]ases involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter” now require a decision by the General Counsel. The reason for this decision is “because of the absence of precedent or because they involve identified policy priorities.”3

The National Labor Relations Act and Protected Activities
Broadly stated, Section 7 of the National Labor Relations Act (“NLRA”) provides employees with the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.4 Section 7 protects “employees’ rights to act together, with or without a union, to improve working terms and conditions, including wages and benefits. These are known as “protected concerted activities.”5 Protected activities include employees discussing pay, work place conditions or other work-related issues with each other.6

If an employer’s social media policy, or discipline related to communications via social media, interferes with concerted activity protected by Section 7, the NLRB will find that such policies or action violate the NLRA. The trick for employers and their counsel is determining whether the communications fall outside of protected, concerted activity, thus permitting the employer to take disciplinary actions to protect their legitimate business interests. Employers should be aware the NLRB treats social media postings the same as more “traditional” communications such as letters or leaflets.7

Employees’ Complaints
Unfortunately, the positive aspects of social media that make it so appealing to most businesses are the very same factors that could cripple a business if employees decide to use social media to make negative comments about their employer or working conditions. Employers, however, are severely constrained from taking disciplinary actions against employees who badmouth their company on the Internet soapbox.

An NLRB Decision and Order (which adopted an Administrative Law Judge Decision) regarding Salon/Spa at Boro, Inc. is instructive as to the interplay between social networking and the NLRA. Former employees of Salon/Spa were posting “negative” comments about the salon and current employees were adding fairly benign comments, such as “yeah” or “love you,” presumably in agreement with the negative comments.8 Salon/Spa’s response was to, quite reasonably, warn its employees during a staff meeting that postings to social media sites could have a significant effect on the success or failure of the company as well as the employees success in their careers since all of the posts may be read by “lots of other people”. Salon/Spa went on to question why current employees would want to be friendly with former employees who made negative comments about the salon.

Two employees were subsequently fired for “negativity” and Salon/Spa was charged with, among other things, uttering an unlawful threat of reprisal concerning employees’ participation in social networking. In determining whether Salon/Spa’s actions with respect to its employees’ social networking activities violated Labor law, the Administrative Law Judge presciently stated “[i]t is likely that social networking issues will become a feature of labor law cases.”

The ALJ noted that if employees used social networking sites to “engage in group communications designed to seek improvement in their conditions of employment”, such communications could constitute conduct shielded by Section 7 of the NLRA. The ALJ, however, found no violation of the NLRA with respect to Salon/Spa’s comments regarding its employees’ use of social networking under the facts of this case. Key to this determination was the fact that Salon/Spa’s statements were “educational and almost parental in nature”, as its motivation was clearly to inform employees about the potential negative impact of employees’ actions on the business and their reputation and future careers as opposed to a “threat of reprisal from management.”9

In another case, a non-for profit healthcare provider considered the Facebook postings by three union employees (one of which was the union’s president), which indicated that the employees might withhold care if they were personally offended by patients.10 The employer suspended the employees with pay pending a psychological evaluation and notified the State Board of Nursing and the Office of Emergency Medical Services about the posts, stating that they showed a “disregard for patient safety.”11

The NLRB determined that, while employers are not allowed to discipline employees for website statements regarding terms or conditions of employment or labor disputes, in this situation the disciplinary actions did not violate the NLRA because the content of the posts do not fall within Section 7 protected concerted activities. The NLRB reasoned that since there is no nexus between the employee’s statements regarding refusal of patient care and any work conditions or ongoing labor dispute, the disciplinary action was not a violation of the NLRA.

Understanding the ultimate cost to parties litigating the rights of employees to comment about their working conditions on social media websites, one of the NLRB Regional Directors commented in connection with such settlement of a social media post: I am pleased that the parties have agreed to resolve this dispute amicably, without the need for costly litigation, and that the employer has recognized the rights of its employees to use social networking sites to comment about their working conditions. This statement is telling as to the position the NLRB may take with respect to employers who curtail such use.

Social Media Policy As Violating Section
Employers should not think that the NLRB is simply focused on improper discipline and terminations. To the contrary, the NLRB has shown that it is more than willing to challenge employers’ social media policies.

In October 2010, the NLRB issued a complaint against American Medical Response of Connecticut alleging wrongful discharge of an employee for posting negative comments about her supervisor on Facebook.13 The NLRB’s complaint, however, also challenged the company’s policies on blogging and Internet posts. The company’s broad policies prohibited “disparaging, discriminatory, or defamatory comments” about the company, coworkers, or customers. The NLRB alleged that these policies were too broad, and infringed on employees’ rights to engage in protected concerted activity by communicating with each other about the terms and conditions of employment. Not surprisingly, the company agreed to revise its social policy rules to make sure that employees are not prevented from discussing the terms and conditions of employment and to refrain from disciplining employees for such discussions going forward.14

The NLRB, however, will not require employers to draft social media policies that essentially give employees unfettered rights to post whatever they want to about employers or fellow employees. In June 2009, Sears instituted a social media policy, which restricted employees from, among other things, using social media to discuss “disparagement of company’s or competitor’s products, services, executive leadership, employees, strategy, and business prospects.”15

An action was commenced against Sears’ policy claiming that it had a chilling effect on protected Section 7 communications. The NLRB General Counsel recommended that the Region dismiss the complaint because the “Employer’s Social Media Policy cannot reasonably be construed to prohibit Section 7 protected activity.” The General Counsel considered the totality of the circumstances surrounding the policy, including Sears’ motivation to protect its legitimate business interests as evidenced by other restricted topics of discussion, such as company confidential or proprietary information, intellectual property, explicit sexual references, references to illegal drugs, and obscenity or profanity. The General Counsel stated that it is plausible that – taken in isolation – the section limiting communications about management and employees could be an unlawful restriction in violation of Section 7, but the section must be considered in context.16

Employees’ posts to social networking sites will be afforded the same protections as more traditional forms of communications regarding workplace conditions despite the fact that Internet posts have a global audience. Employers who overlook this will undoubtedly quickly find themselves in labor disputes and costly litigation.

Jennifer McLaughlin is a Partner and Justin Capuano is an Associate at Cullen and Dykman LLP, Garden City, New York.

3. NLRB, Office of the General Counsel, Memorandum GC 11-11, April 12, 2011.
4. 29 U.S.C. § 157.
7. Mashantucket Pequot Gaming Enterprise, 356 NLRB 111 (2011).
8. Salon/Spa at Boro, Inc., 356 NLRB 69 (2010).
9. Id. at page 13.
10. Advice Memorandum regarding Monmouth Ocean Hosp. Serv. Corp. d/b/a MONOC, 22-CA-29008 (May 5, 2010).
11. Id. at page 4.
13. Am. Med. Response of Conn., Inc., 34-CA-012576 (2011).
15. Advice Memorandum regarding Sears Holdings, 18-CA-19081 (Dec, 4, 2009).
16. Id. at page 5-6