Commentary Addressing Risks and Opportunities Through the Lifecycle of Data, Technology, Advertising and Innovation

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In its continuing effort to grapple with when and where employee speech is protected under Section 7 of the National Labor Relations Act ("NLRA"), on August 18, 2011, the NLRB's Acting General Counsel issued a <a href="http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases">report</a> addressing when it is lawful and unlawful to discipline employees for social media activities and the proper scope of employers' social media rules and policies.

Generally, employees have the right under the NLRA to be free from reprisal for discussing with their co-workers the terms and conditions of their employment. This is protected concerted activity because by doing so, they are implicitly or explicitly seeking to join together for their mutual aid or protection. Accordingly, employers who discipline their employees for concertedly complaining about their wages, hours, and conditions of employment violate Section 8(a)(1) of the NLRA.

SOCIAL MEDIA ACTIVITIES PROTECTED UNDER THE NLRA

The General Counsel's report discussed four advice memorandums in which it was determined employee conduct was protected under the NLRA. The specific conduct at issue (the majority of which took place outside the workplace) involved:

1. Employees complaining to each other via Facebook (with expletives) about their employer's tax withholding practices;

2. A commission-paid employee posting on Facebook pictures and sarcastic commentary criticizing the inexpensive manner in which his employer conducted a sales event;

3. An employee posting negative comments on Facebook about a supervisor (including calling him a "scumbag"), who was investigating a customer complaint against the employee; and

4. Multiple employees posting comments (which included swear words and sarcasm) on Facebook criticizing the work performance of their coworkers and staffing level problems.

In each of the above situations, the conduct was deemed protected under the NLRA because: (1) the communications concerned the terms and conditions of employment; (2) the subject of the communication was brought to management's attention or the employee had reason to believe the communication would result in a discussion with management; (3) the communications addressed employees' shared concerns; and (4) the communications were directed at coworkers and/or discussed with coworkers.

SOCIAL MEDIA ACTIVITIES NOT PROTECTED UNDER THE NLRA

In addition, the August 18, 2011 Report dealt with two Advice Memorandums in which an employee's use of social media was not protected activity. The first Advice Memorandum involved an employee who complained on a senator's Facebook page that her employer paid low wages and lacked sufficient equipment. This communication did not constitute protected activity because (1) the post was not discussed with the employee's coworkers; (2) the employee did not try to raise the issue with management and she did not expect the senator to resolve the problems with her employer; and (3) none of the employee's coworkers had met or organized any group action regarding the subject of the employee's comments. Complaining by yourself about your employer to an outside entity that is not a union has never been protected activity.

The second Advice Memorandum involved a reporter who created a Twitter account after being encouraged to do so by his employer. On that account, the reporter criticized his employer's copy editors, made comments about area homicides (which were a part of his beat), and criticized an area television station. The General Counsel stated the reporter's subsequent termination was not unlawful because the Twitter posts did not relate to the terms and conditions of his employment and the reporter did not seek to involve coworkers -- both of which are fatal to any claim of protection under the NLRA.

RECENT ALJ DECISION

While not addressed in the NLRB's report, it is important to note that on September 2, 2011, an Administrative Law Judge (ALJ) issued the first post-hearing decision regarding an allegation that discipline of employees for comments made on a social media site violated Section 8(a)(1) of the NLRA. In Hispanics United of Buffalo Inc., NLRB ALJ, No. 3-CA-27872, 9/2/11, five employees were fired after they used Facebook to post complaints about a fellow employee's criticism of their work. The employer claimed that the Facebook comments caused the employee to suffer a heart attack and were a violation of the company's harassment policy. After a hearing, the ALJ ruled that firing the workers for such work-related comments violated the NLRA because the employees engaged in concerted activity that was protected by the NLRA. The ALJ specifically rejected the employer's defenses finding no evidence to support that the Facebook comments harmed the employee's health or violated the employer's harassment policy.

The Facebook comments at issue in Hispanics United of Buffalo Inc., clearly concerned terms and conditions of employment which were directed to coworkers and addressed the shared concerns of the employees. Accordingly, the ALJ had no problem concluding that the communications were protected concerted activity under the NLRA.

GUIDANCE REGARDING THE SCOPE OF EMPLOYER'S SOCIAL MEDIA POLICIES

The Advice Memorandums as well as the recent ALJ decision in Hispanics United of Buffalo Inc., make clear that an employer must tread very carefully in seeking to promulgate policies which regulate the activities of employees on social media sites. Certainly, any policy which seeks to regulate discussion among employees concerning the workplace or their terms of employment will be deemed unlawful and overbroad by the NLRB to the extent that it regulates protected concerted activity under Section 7 of the NLRA.

It is equally clear that employers have very limited defenses when disciplining an employee who engages in concerted activity. For example, in a matter in which the employees complained about an employer's tax withholding practices, the General Counsel rejected the employer's argument that discipline was appropriate, or that the conduct was not protected, because it was defamation. The General Counsel reasoned that an activity does not lose its protected status simply because the statement is false. The statement must be maliciously false to lose its protected status. Similarly, the fact that the protected communication contained swear words and insults was insufficient to render the communication unprotected. This reasoning is consistent with long-term precedent that holds that employee conduct must be significantly outside the realm of normal workplace conduct to lose the protection of the NLRA. Accordingly, it will be critical for employers to seek counsel before implementing such policies in the future.

NLRB Provides Guidance Regarding Social Media Sites