Social media have redefined recent political movements, from the Arab Spring to Occupy Wall Street. Protesters around the world can instantly muster mass demonstrations through Twitter and Facebook postings. The new generation of activists, connected by Internet and cellular technology, has made such a splash that Time
magazine recognized "The Protester" as Person of the Year for 2011.
Demonstrations against corruption on Wall Street, home foreclosures, and the inaccessibility of health care have attracted participants from all walks of life. Employers, therefore, should expect that some employees might disseminate social media messages in support of protest movements. Here are the rules that govern the rights of employees to advocate for political movements, and the rights and duties of employers.
California provides several potential sources of protection for political activity, whether inside or outside the workplace. The state constitution provides broad free speech rights: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right." (Cal. Const. Art. 1, § 2 (a).)
Further protection of off-duty conduct comes from California's Labor Code, which prohibits termination or employment discrimination based on "lawful conduct occurring during non-working hours away from the employer's premises." (Cal. Labor Code § 96 (k).) In other words, employers cannot punish an employee for lawful activity away from work.
Additionally, Labor Code sections 1101 and 1102 protect employees from retaliation based on their political activities. Section 1101 prohibits employers from making, adopting, or enforcing any rule, regulation, or policy "forbidding or preventing employees from engaging or participating in politics, or from becoming candidates for public office," and bars them from "controlling or directing the political activities or affiliations of employees." (Cal. Labor Code § 1101 (a)-(b).)
Section 1102 bans employers from coercing, influencing, or attempting to coerce or influence workers "through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity." The term "political activity" has a broad interpretation. (See Gay Law Students Ass'n v. Pacific Tel. & Tel. Co.,
24 Cal. 3d 458 (1979).)
Often protesters criticize elected officials and government policies, calling for jobs, better working conditions, and health benefits. Even if such messages do not directly target the protester's own workplace, the activity may still enjoy the protection of California law against retaliation.
The National Labor Relations Act (29 U.S.C. § 151169) protects concerted activity among employees, which can include one employee trying to spur on others for mutual aid and protection in issues of wages, hours, or terms and conditions of employment. To gain the act's protection, an employee must be engaged in activity "with or on the authority of" fellow employees and not solely on his or her own behalf (Meyers Industries
, 281 NLRB 882 (1986)). The National Labor Relations Board has taken the view that social media complaints about wages, hours, or working conditions in an employee's own workplace are protected conduct under the act, particularly if they are joint or collective in nature. (See Hispanics United of Buffalo, Inc. v. Ortiz
, 2011 WL 3894520 (NLRB Div. of Judges, Sept. 2, 2011).) It is, therefore, unlawful for an employer to discharge or penalize the employee for such posts.
An NLRB General Counsel Memorandum from 2008 concerning political activity states that an employee's political activity is protected if there is a direct nexus between an employment-related concern and the specific issues that are the subject of the advocacy. In numerous cases, the board has found that employee appeals to legislators or governmental agencies were protected if the substance of those appeals related directly to employee working conditions. The board also has ruled that a union's intervention before state agencies is protected activity when designed to expand union job opportunities or to further employees' health and safety. Under the 2008 memorandum, once a political activity is established to have protection, the labor relations act determines whether the means of expression employed is also protected. Generally, an employer cannot discharge or discipline employees who leave work without permission if they strike to gain from their employer some improvement in working conditions.
However, the U.S. Supreme Court suggested more than 30 years ago in Eastex, Inc. v. NLRB
(437 U.S. 556 (1978)) that economic pressure in support of a political dispute - such as a walkout or boycott - may not be protected when exerted against an employer that has no control over the outcome of the dispute. How the Court would reconcile that ruling with the 2008 guidance today is an open question.
Most likely, an employee making social media posts that spur others to criticize wages or working conditions in his or her own workplace has the act's protection. An employee making posts that do not
spur on such job-related activity or criticism may not be protected.
Advice for Employers
To accommodate employees' protected political expression - whether on social media or in other forms - employers can take several steps.
Maintain workplace policies that follow the law.
Enforce those policies consistently to avoid infringing on protected activity.
Respect employees' communication rights; this will foster a positive internal image for the workplace.
Promote a socially responsible external image - which employers can enhance through their own presence on social media.
Thomas Lenz, a partner in Atkinson, Andelson, Loya, Ruud & Romo's Cerritos office, represents employers and heads the firm's NLRB practice.