In light of guidelines issued recently by the National Labor Relations Board (NLRB), companies should review and amend policies on employees' social media use, if these rules are more than a few months old. These policies now could be perilously overbroad, especially if they were modeled after samples taken from the Internet. Here are three things to keep in mind:
An overly broad social media policy could hurt a company's bottom line if it is found to be unlawful. The financial incentive for making sure the company's policy is appropriate for its employees is underscored by last year's ruling in Hispanics United of Buffalo Inc v. Ortiz
(2011 WL 3894520 (NLRB Div. of Judges Sept. 2, 2011)). It is the first NLRB administrative decision involving the firing of employees for work-related social media activity. The nonprofit was ordered by an administrative law judge to rehire and provide back pay to five employees it had fired over complaints they posted on Facebook about criticisms of their job performance by another Hispanics United employee.
Administrative law judge Arthur Amchan concluded that the posts were "concerted activity" on a subject matter protected by section 7 of the National Labor Relations Act (NLRA), and that the employees' termination violated section 8(a)(1) of the act. The liability exposure is potentially substantial and could mean hundreds of thousands of dollars in salary for workers hired to replace the terminated staff, back pay, attorneys fees, and other defense costs.
Last August, just prior to the Hispanics United
ruling, the NLRB's office of general counsel issued a memorandum report regarding employees' social media activity (see www.nlrb.gov/publications/operations-management-memos). After investigating 14 recent cases, the report's authors concluded that employers had the most problems with policies that were overbroad in restricting employees' use of social media.
Sections 7 and 8(a)(1) of the NLRA define the statutory protection for employees. Businesses and human resources professionals must keep this protection in mind when regulating employees' social media activity. Section 7 provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." (29 U.S.C. § 157.) Section 8(a)(1) prohibits employers from doing anything to discourage their employees from exercising their Section 7 rights: An employer cannot "interfere with, restrain, or coerce employees in the exercise of the rights" guaranteed in section 7. (29 U.S.C. § 158(a)(1).) These provisions apply to employees regardless of whether the workplace is unionized. However, they do not apply to independent contractors used by the company.
In practice, this means that employers cannot chill or penalize communications between employees concerning work conditions, terms of employment (salary, benefits), managers, or management. A further wrinkle for employers is that most employees who use social networking sites such as Facebook are "connected" with other employees, who may comment on their coworkers' online complaints about work, which could constitute protected "concerted activity." Even an approving "like" of a coworker's post - short of a comment - could be protected.
In one recent case, for example, a salesman for a luxury car dealership complained online about the cheap food his employer gave away at a sales event for customers. The salesman, Robert Becker, and his coworkers commented in his Facebook post that giving away cheap food would result in a negative impression of the BMW dealership, fewer cars being sold, and therefore reduced sales commissions for them. His comment would have been protected activity because it was a discussion with coworkers about their jobs.
Becker was fired anyway, because an employee can be sanctioned for a comment that is outside the scope of protected activity - and the dealership persuaded the ALJ that Becker had been terminated not
for his sarcastic comments about the sales event, but for a separate, unprotected Facebook posting. That posting consisted of pictures of an accident at an adjacent Land Rover dealership also owned by his employer. Along with the photos, Becker commented, "This is your car. This is your car on drugs." The accident reportedly occurred after a Land Rover salesperson allowed a 13-year-old boy to get behind the wheel of a car; the boy drove it into a pond (Robert Becker v. Karl Knauz Motors Inc.
, Case No. 13-CA-46452 (NLRB Div. of Judges Sept. 28, 2011)). The post did not constitute protected activity, the ALJ ruled, because "it was posted solely by Becker," without any discussion with any other employee," and "had no connection to any other employees' terms and conditions of employment."
Harassment and Defamation
Not all social media activity is protected. Employers can take action against employees for social media posts about the company if the employee is defaming the company and/or management and the statements clearly do not concern work conditions, benefits, wages, or other terms and conditions of employment; employers are entitled to loyalty from their employees. In addition, companies may discipline employees for discussing privileged or confidential client communications; or for harassing, threatening, or making racist statements directed at a coworker. (See, e.g., National Labor Relations Board, Report of the General Counsel
(Aug. 18, 2011) at 14; Labor Board v. Electrical Workers
, 346 U.S. 464 (1953).) In other words, employees cannot freely harass or bully other employees, or indiscriminately defame their employers.
Michelle Sherman is special counsel at Sheppard Mullin Richter & Hampton in Los Angeles, where she edits its
Social Media Law Update blog.