TBA Law Blog


Posted by: Christy Gibson on Oct 9, 2012

By Bruce E. Buchanan*

     Over the past year or so, the National Labor Relations Board has been aggressively pursuing employers related to its social media policies and discharge of employees, who utilized social media to criticize their employers. In this article, I will discuss the basics of social media cases and two recent NLRB decisions involving social media as well as several ALJ decisions.

     For many casual observers of the NLRB, you might wonder how does the NLRB even have authority over social media-related cases. The answer is simple - Section 7 of the National Labor Relations Act states employees have the right to engage in "concerted activities" for "mutual aid or protection." Furthermore, Section 8(a)(1) makes it a violation of the NLRA to discharge an employee for engaging in protected concerted activities.  Moreover, the maintenance of a work rule, such as those concerning social media, which reasonably tends to coerce employees in the exercise of their Section 7 rights violates Section 8(a)(1).

     In the past year or so, the General Counsel has issued three reports on social media - August 2011, January 2012 and May 2012.[i] From my experience as a former NLRB attorney and seasoned observer of the NLRB, I think this is the greatest number of reports on any subject in such a short time period. In each report, the General Counsel discusses charges related to social media, advice memoranda, settlements, dismissal letters, and Administrative Law Judge (ALJ) decisions.

     The NLRB's emphasis on social media cases is not particularly surprising as it needs to find a way to find itself relevant in the law as union-related charges/elections continue to plummet. In stating such, I do not mean to question the NLRB's authority over social media cases, just to comment on its ability to seize the opportunity.

     Last month, the NLRB issued its first social media decision, Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 2012).  The NLRB found Costco violated Section 8(a)(1) by maintaining a rule prohibiting employees from electronically posting statements that "damage the company ... or damage any person's reputation."  The rule stated:

Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.

     The NLRB analyzed whether this rule chilled employees in the exercise of Section 7 rights by initially determining the rule did not explicitly restrict Section 7 rights.  Thus, the analysis was whether: (1) employees would reasonably construe the rule's language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. See LutheranHeritage Village - Livonia, 343 NLRB 646, 647 (2004).

The NLRB found:

[T]he broad prohibition against making statements that 'damage the company, defame any individual or damage any person's reputation' clearly encompasses concerted communication protesting the respondent's treatment of its employees. Indeed, there is nothing in the rule that even arguably suggests that protected communications are prohibited from the broad parameters of the rule.

Costco at slip op. p. 2. Therefore, Costco's maintenance of the rule had a "reasonable tendency to inhibit employees' protected activity" and violated Section 8(a)(1).

     More recently, the NLRB issued a decision in Karl Knauz BMW (Sept. 2011), finding an employee’s discharge was not unlawful. In this case, after someone drove a vehicle at a car dealership into a pond, a car salesman took some photographs of the situation.  Later that week, the sales manager informed salesmen that the dealership would be serving hot dogs, cookies and water at an event to introduce a new car model.  The salesmen expressed their concerns to the managers that the cheap food and drink would send the wrong message to their upscale BMW clients. An employee posted photographs of the event as well as the vehicle in the pond with an introduction sarcastically stating the car dealership had gone all out for the car launch.  The employer saw the photographs on Facebook and discharged the employee. The General Counsel’s asserted the employee engaged in concerted activity because posting the photographs was an outgrowth of the previous discussion of issues with co-workers.  The ALJ and the NLRB found the employer discharged the employee for posting photos of the accident, not of the sales event. Thus, the conduct was not protected.

     I will now discuss a few ALJ decisions. In General Motors, LLC (May 2012), an ALJ found a portion of GM’s social media policy violated Section 8(a)(1). Specifically, the language in question stated:

Be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site. . . . Non-public company information includes: Information that has not already been disclosed by authorized persons in a public form; and Personal Information about another GM employee, such as his or her . . . performance, compensation. . . .

When in doubt about whether the information you are considering sharing falls into one of the above categories, DO NOT POST. Check with GM Communications or GM legal to see if it’s a good idea. Failure to stay within these guidelines may lead to disciplinary action.

     The ALJ found the rule unlawful because:

[E]mployees would reasonably read some of this language as prohibiting protected employee communications about terms and conditions of employment, because it expressly prohibits employees from discussing online coworkers’ wages and other compensation, as well as working conditions…. Second, the policy requires that posts be “completely accurate” and “not misleading.” However, the fact that Section 7 communications are false, misleading, or inaccurate does not per se strip them of the Act’s protection…. Third, there is the provision directing employees to check with the Company if they are in doubt about whether information falls in one of the enumerated categories. This can reasonably be read to require employees to secure permission before they engage in Section 7 activities.

Slip op. p. 5-6.

     However, an ALJ issued a decision in Hispanics United of Buffalo (Sept. 2011), finding the employer violated Section 8(a)(1) by discharging five employees. In this case, a group of employees discussed the poor job performance of one employee. An employee posted a message on his Facebook page about this matter, and solicited responses from her coworkers. Four employees posted comments criticizing the employee, who was criticizing other employees’ job performances.  The employee, who was subject of criticism, complained to the director about the posts. The employer discharged the five employees, who posted, for “bullying and harassment.”  The ALJ found communications between the five employees, in response to another co-worker’s criticisms of their work performance, was protected activity regardless of the fact the employees were not trying to change their working conditions. 

     An ALJ found unlawful an employer's social networking policy, which said "Do not comment on work-related legal matters without express permission of the legal department. See G45 Secure Solutions (Mar. 2012). In this case, the Social Networking policy stated: “Do not comment on work-related legal matters without express permission of the legal department.”  The ALJ found the policy was illegal because the term “legal matters” was not defined. It cannot be assumed employees have knowledge to discern what a federal law is - permitted under disclaimer, rather than prohibited “legal matter.”  The policy would be reasonably interpreted to prevent employees from discussing working conditions and terms and conditions of employment, where discussions concern potential legal actions/complaints that employees have filed.


*Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C., where he represents individuals and employers in all aspects of immigration law as well as employers in employment/labor law. Mr. Buchanan is past chair of the Tennessee Bar Association's Immigration Law Section. He writes a blog employer immigration compliance which is at http://blogs.ilw.com/immigrationcompliance/. Mr. Buchanan graduated from Vanderbilt School of Law and Florida State University. He may be reached at bbuchanan@visalaw.com or (615) 345-0266.

[i] Furthermore, the NLRB has set up a webpage detailing 13 cases involving employees being unlawfully discharged for engaging in protected concerted activities. This particular website page was just introduced in June 2012.