Advising Clients on the NLRB’s Treatment of Social Media Cases

A Primer for Nonemployment Lawyers

With the flood of Facebook, Twitter, LinkedIn, individual blogs and other social media outlets, the National Labor Relations Board (NLRB) has extensively addressed employer discipline of employees for comments on social media sites and the lawfulness of employers’ social media policies under the National Labor Relations Act.[1] The cases arise when an employer disciplines or terminates an employee for an off-duty posting on a social media site that disparages the employer, including its management and supervisors. The board has taken the position that if the employee’s posting meets the definition of “concerted” activity, which is “protected” by the act, the employer’s action is unlawful. In most discipline or discharge cases the board has also found that the employer’s social media policy violated Section 8(a)(1) of the act because specific provisions could be interpreted to prevent employees from engaging in protected concerted activity. Many employers and nonemployment lawyers have been surprised to find that the board’s stance on social media policies and related discipline applies to union and nonunion employers alike.

The board appears to have reversed field from a 2009 Advice Memorandum, Sears Holdings,[2] which found a clause in the social media policy that prohibited “disparagement of company’s or competitor’s products, services, executive leadership, employees, strategy, and business prospects,” did not violate Section 8(a)(1) of the act. This was because when the policy was read in its entirety, the employees could not reasonably view that provision as applying to Section 7 activity. However, in October 2010, the board announced its first social-media-related complaint in American Medical Response of Connecticut.[3] The employer had fired an employee over a Facebook posting that violated the company’s policies barring employees from depicting the company “in any way” on Facebook and from making “disparaging” comments when discussing the company or its supervision. The complaint alleged that the employer had violated the act because the employee was engaged in protected activity when she posted disparaging comments about her supervisor on her Facebook page. Her posting, in turn, became concerted activity when it drew supportive responses from her co-workers who also disparaged the supervisor. The ambulance service ultimately settled the complaint in February 2011, by agreeing to revise its social media policy to ensure it does not improperly restrict employees from discussing wages, hours and working conditions. The employer also had to post a notice that it would not discipline or discharge employees for engaging in such discussions.

Since American Medical Response of Connecticut, the board has considered scores of social media related discipline cases with mixed results. Employees engaging in protected concerted activity have been protected by the act, while those acting alone and airing personal gripes have not. Most recently, on Aug. 18, the Office of the General Counsel released Memorandum OM 11-74, summarizing 14 of the board’s social media cases since Oct. 2010.[4] Acting General Counsel Lafe Solomon explains in the introduction that the purpose of Memorandum OM 11-74 is to present recent developments arising in the context of social media and emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings and the lawfulness of employers’ social media policies and rules.[5] Memorandum OM 11-74 is important reading for any counsel representing employers who are contemplating or have developed social media policies or are considering disciplining or terminating an employee for social media posts.

It is not possible to discuss Memorandum OM 11-74 thoroughly in this column. I will only outline general principles and provide general guidelines for employers’ counsel on social media polices and discipline decisions. Under Section 7 of the act, employees have the right to engage in “protected concerted activity” irrespective of whether they are represented by a union. AGC Solomon has stated publicly that statements on Facebook are equivalent to statements at a water cooler. Analytically, the board first determines whether the activity is “concerted.” In doing so the Board applies its established Meyers Industries test.[6] Under Meyers Industries the activity will be considered concerted if it is “engaged in, with or on the authority of other employees, and not solely on behalf of the employee himself.”[7] Activity will also be concerted in circumstances where the “individual employees seek to initiate, or induce or prepare for group action,” and where the individual employee “brings to management’s attention truly group complaints.”[8] Actions will not be considered concerted if the comments are made solely by and on behalf of the employee himself.

The board next analyzes whether the employee has engaged in “protected” activity. A social media posting will be considered protected activity where it relates to “terms and conditions of employment.” As you might imagine, the board broadly interprets this term. For example, in Karl Knauz BMW,[9] the board found that an employee’s Facebook posting criticizing its handling of a sales event (by serving cheap refreshments) was related to terms and conditions of employment because cheap refreshments could impact the employees’ sales and commissions.

An employee loses the protection of the act if the activity is “maliciously false” or “opprobrious” under the Atlanta Steel Company test.[10] This test is heavily slanted toward the employee, as can be seen from the board’s position in social media cases that it is not beyond the act’s protection to call a supervisor a “scumbag”[11] or employer’s owner “an asshole”[12] on the Internet.

In determining whether an employer’s social media policy violates the act, the board considers whether it would “reasonably tend to chill employees in the exercise of their Section 7 rights.”[13] In Memorandum OM 11-74, the General Counsel relies on Lutheran Heritage Village-Livonia[14] to determine whether a work rule will “chill” employees’ exercise of Section 7 rights. Thus, the board considers whether the policy explicitly restricts Section 7 activities, and if not, whether the employees would “reasonably construe the language to prohibit Section 7 activities.”[15] For example, in American Medical Response of Connecticut,[16] the board found that a policy that “prohibited employees from making disparaging remarks when discussing the company or supervisors, and for depicting the company in any media, including … the Internet, without company permission,” violated Section 8(a)(1) of the act.[17] The policy, said the board, could prohibit an employee from engaging in protected activity, for example, by posting a picture of picketers that identifies the employer, and from making disparaging comments about the company or its supervisors, which are protected by Section 8(a)(1). In subsequent cases the board has found that broad prohibitions such as “inappropriate discussions about the company”; “talking about company business”; and “posting anything [the employees] would not want their manager or supervisor to see”; are all overly broad and could be read by employees as prohibiting them from engaging in protected concerted activity.

In short, employers should not use broad terms in social media policies that would commonly apply to protected discussion about the employer’s labor policies or treatment of employees. The board has taken the position that employers must define broad terms or give examples of what circumstances are prohibited to remove any ambiguity that could chill employees’ protected activity. Absent such limitations on examples, the broad terms will be found to have violated the act.[18]

Considerations for Disciplining Employees

Given the foregoing, what should an employer do with an employee who criticizes it through social media? Tread lightly and thoroughly analyze whether the conduct is protected by the act. Keep in mind some general rules of thumb:

  • Be sure that employer’s Internet and social media policy is not “overly broad,” and make clear the company is not prohibiting protected activity.
  • Avoid disciplining employees whose conduct on its face involves concerted activity or that could be construed as acting on behalf of other employees.
  • Activity that is engaged in, with or on the authority of other employees, is concerted activity even if the employer is unaware of the activity.
  • Individual activity that in fact arises out of prior concerted employee action will be considered concerted even if the employer is unaware of the prior activity.
  • Recognize that statements critical of management or supervision are still protected if they can be considered concerted activity involving labor policies, wages, benefits or working conditions.
  • Even making statements that are highly critical of management or supervision, like calling a supervisor an “asshole” or a “scumbag,” they will likely not be considered to have lost the protection of the act.
  • Defamatory statements will not lose protection unless they are not only false, but “maliciously false.”

Social Media Policy Considerations

When it comes to a company’s social media policy, there are some measures an employer should take to avoid being in violation of the act. Here are some guidelines to follow:

  • Evaluate the policy so that the language is not overbroad and could “chill” the employees’ right to engage in a protected concerted activity.
  • Ensure that the policy focuses on legitimate business interests unrelated to its terms and conditions of employment. It is easier to prohibit criticism of customers or products than supervisors.
  • Avoid rules that use vague terms and overbroad language such as prohibiting employees from “inappropriate discussions” or “offensive conduct.” Instead, use descriptive examples, specific to your business, of prohibited activities while being sensitive to protected concerted activities.
  • Consider language such as “in no way does this policy limit your rights, as an employee, under the [act] or any other applicable federal or state law.”
  • Focus on prohibiting social media activities unrelated to wages or working conditions. Thus, employers can prohibit disclosure of well-defined trade secrets and confidential information, business strategy, racial or sexual slurs directed at employees, harassment under its harassment policy, and so forth.

Notes

  1. 29 U.S.C.S. §§ 151, et seq.
  2. Sears Holdings (Roebucks), 18-CA-19081 (December 4, 2009).
  3. American Medical Response of Connecticut, 34-CA-12576 (Oct. 5, 2010).
  4. General Counsel Memorandum OM 11-74 (Aug. 18, 2011), a “Report of the Acting General Counsel Concerning Social Media Cases.”
  5. Memorandum OM 11-74 introductory remarks by Lafe E. Solomon.
  6. Memorandum OM 11-7, p.2, citing Meyers Industries Inc. and Kenneth P. Prill, an Individual (Meyers I), 268 NLRB 493 (1984), rev’d. sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), on remand Meyers Industries Inc. and Kenneth P. Prill, an Individual (Meyers II), 281 NLRB 882 (1986), aff’d. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
  7. Meyers I, 268 NLRB at 497.
  8. Meyers II, 281 NLRB at 887. Although the memorandum does not identify any cases by name, the board applied the Meyers Industries test in Hispanics United of Buffalo, 03-CA-27872 (Nov. 18, 2010) (five employees were illegally terminated for negative social media discussions of a coworker).
  9. Karl Knauz BMW, Knauz Auto Group, 13-CA-046452 (Nov. 30, 2010).
  10. Memorandum OM 11-74 pp. 8-9, Triple Play Sports Bar, 34-CA-12915 (Feb. 16, 2011) citing Atlantic Steel Company, 10-CA-13634 (Sept. 28, 1979).
  11. American Medical Response of Connecticut, 34-CA-12576 (Oct. 5, 2010).
  12. Memorandum OM 11-74 p. 8, citing Triple Play Sports Bar, 34-CA-12915 (Feb. 16, 2011).
  13. Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F. 3d 52 (D.C. Cir. 1999).
  14. Memorandum OM 11-74, pp.9-10, citing Lutheran Heritage Village-Livonia, 343 NLRB at 647 (2004).
  15. Memorandum OM 11-74, p.10, citing Triple Play Sports Bar, 34-CA-12915 (Feb. 16, 2011) discussing Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).
  16. American Medical Response of Connecticut, 34-CA-12576 (Oct. 5, 2010).
  17. 29 U.S.C.S. § 158(a)(1) (employees have the right to engage in “protected activity” without employer restraint).
  18. Memorandum OM 11-74, pp. 9-10.

Edward Phillips EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLC in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.