Finding Certain Facebook Activity To Be Unprotected, NLRB DismissesTwo Charges

Posted by Mark Theodore on November 07, 2011

The interesection of social media and employee rights under the National Labor Relations Act has received a great deal of attention in recent months, including recently on this blog.  Social media sites such as Facebook and LinkedIn have made it very easy for people to stay connected.  With a simple push of the button, everyone in a widespread group, friends and beyond, can receive real time information about a person.  The ease of people staying connected also has made it more difficult for employers.  Employee comments were once confined to a small group gathered around the water fountain.  Employers now are confronted with an array of unflattering comments (and in some cases pictures) about things occurring in the workplace that appear online for all to see; once it gets online, it can be copied and forwarded to any number of people. 

Negative posts often have resulted in employer action, including termination of the posting employee.  In some cases, the employees have gone to the NLRB to complain that the conduct was protected under the NLRA because it concerned terms and conditions of employment and was of a concerted nature.

Two recent dismissals of NLRB cases underscore the fact that just because you can post a gripe online, it does not mean you will receive the government's protection.   In each case, the conduct was found to be "unprotected" meaning the NLRA was not implicated because the relationship to terms and conditions of employment was not material.

The case of the angry BMW salesman

As we reported in May of this year, a BMW dealer in Illinois fired a salesman who posted online pictures and commentary critical of a sales event.  The employee objected to the fact the employer made available only hot dogs and chips to customers.  After his discharge, the salesman filed charges and the NLRB issued complaint.  The NLRB's original press release on the case cited only the employee's postings about the sales event. 

A trial was held on July 21, 2011.  At trial, the employer admitted that the employee was fired for his Facebook postings.  The employer asserted, however, that it fired the salesman for posting pictures and commentary detailing in mocking terms a Land Rover accident at the employer's sister dealership located next door to the BMW dealership.  So, the real dispute was whether the employee's work related "grievance" about the sales event or whether the posting about the accident was the reason for his termination.

The Administrative Law Judge in his decision analyzed the sales event and the Land Rover crash separately under the Act.  As to the sales event, the Judge found that it was protected, concerted activity because evidence at the hearing established that the salespeople at the dealership had a meeting with management to discuss how the sales event was handled, and these concerns were discussed afterword by salespeople.  Even though the employee who was fired was the only one of the salespeople to post comments about the event on Facebook, this conduct was deemed protected because the complaint about the sales event highlighted things that could have resulted in reduced compensation for the salespeople generally.  The Judge, however, seemed to conclude that it was only barely protected, stating in his decision:

While it was not as obvious a situation as if he had objected to the [Employer] reducing their wages and benefits, there may have been some customers who were turned off by the food offerings at the event and either did not purchase a car because of it or gave the salesperson a lowering (sic) rating in the Customer Satisfaction Rating because of it; not likely, but possible.

The Judge noted that the discharged employee had 95 friends, sixteen of whom were employed by the employer.  The employee achkowledged that his privacy settings allowed access to "friends of friends", so the potential number of people who saw his posts about his employer could well be over a thousand people or more.  How a negative complaint about a sales event made to the public was to "help" the salespeople is not explained.

The Judge went on to conclude that the salesman's discharge was not unlawful because the real reason the employer fired him was for posting material which made fun of the Land Rover accident.  The Judge's analysis on this posting of the employee was a bit more direct:

On the other hand, I find that [employee's] posting of the Land Rover accident on his Facebook account was neither protected nor concerted activities, and Counsel for the General Counsel does not appear to argue otherwise.  It was posted solely by [employee], apparently as a lark, without any discussion with any other employee of [Employer], and had no connection to any employees' terms and conditions of employment.  It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of hte posting further affects the nature of the posting. . .

At the end of the day, it seems the NLRB issued a complaint betting that it would win the credibility dispute between the discharged employee (who claimed the posting over the sales event was the sole motivation for his discharge) and the employer's representatives (who asserted it was more about the Land Rover posting) over the motivation for the discharge.  The Judge ultimately believed the employer, and was openly skeptical of the Region's theory even if he did conclude that the posting about the sales event was protected, concerted activity.

Despite clearing the employer of the discharge, the Judge ruled certain of its policies were unlawfully overbroad.

The Judge's Decision in Karl Knauz Motors, Inc. (Case No. 13-CA-46452).pdf issued on September 28, 2011.

The case of the "whistleblower" bartender

In another twist of where an employee seizes on the hype surrounding the NLRB's issuance of complaint in some Facebook related cases, a bartender attempted to claim she was fired unlawfully for posting material about certain alleged misconduct by a co-worker.  On September 19, 2011, the NLRB's Divison of Advice concluded that a charge filed by a bartender in Puget Sound, Washington should be dismissed. 

The facts are pretty basic.  The bartender ("Charging Party"), one of four at a restaurant, discovered that "a new bartender was serving customers made from a pre-made mix while charging them for drinks made from scratch with more expensive premium liquor."  The Assistant Manager of the restaurant learned of the problem, counseled the errant bartender, and noted the action in his personnel file.

Despite the fact the problem seemed to be resolved, the Charging Party posted comments on her Facebook page to the effect that, "So, I just learned that a fellow coworker/bartender is a cheater! He has been screwing over our faithful customers! Very nice!"  The Charging Party includes among her Facebook acquaintances customers, co-workers and former co-workers.  There was some exchange online between Charging Party and a former co-worker about the situation.

Charging Party continued to post comments about the situation.  A fellow bartender, some servers at the restaurant, and Charging Party discussed the situation at work.  Some people supported the Charging Party, while others did not.  The bartender who was part of this discussion complained to General Manager about Charging Party, apparently worried her posts would be seen by customers.  The employer discharged Charging Party for, "Use of unprofessional communication on her facebook (sic) to fellow employees viewed by employees."  

So, here we have a case where the employer made clear that the employee was being fired for things posting commnents her fellow employees could see.  Was this activity protected?  Charging Party asserted her discharge was unlawful because she was acting as a whistleblower, pointing out how customers were being "cheated" by her felllow bartender. 

Advice concluded Charging Party's discharge was not unlawful.  In reaching this conclusion, Advice reviewed the law, noting the grievance's relationship to an employee's terms and conditions of employment is of paramount importance:  "The Board has held that employee protests over the quality of service provided by an employer are not protected" if the relationship between the service quality and terms and conditions is "tangential."  In contrast, "when employees engage in conduct to address the job performance of their coworkers or supervisor that adversely impacts their working conditions, their activity is protected."  Specifically, because the Charging Party's assertions claimed a "whistleblower" type motivation, Adivce detailed the Board's decision in Georgia Farm Bureau Mutual Insurance Cos., 333 NLRB 850, 850-51 (2001).pdf,  where the employer was found to have unlawfully discharged two employee insurance agents for reporting a supervisor's fraudulent claims processing to the Georgia State Insurance Commissioner.  The Board noted that each insurance agent's employment agreement stated they could be "immediately terminated" for misconduct, including fraud, and the State Insurance Code required licensed agents to report suspected fraud.  The insurance agents' conduct was deemed protected, concerted activity, because they "reasonably feared that a failure to report the suspected fraud could impact adversely on their working conditions."  Id.

In the bartender's case, of course, she didn't report her fellow bartender's actions to any authority, nor was she required to do so.  In fact, she just complained about it in a Facebook posting, viewable to the world, including customers and co-workers.  The Charging Party had no reasonable fear that failing to report the alleged misconduct would result in her termination.

Also, and what makes this case stand out, is the fact the Charging Party's fellow bartender reported her Facebook posts to the employer because he believed they would result in a loss of business.

In determining the case should be dismissed, Advice was blunt in its assessment that Charging Party's conduct did not rise to the level of a noble whistleblower:

Here, the Charging Party's Facebook posts regarding her fellow bartender's job performance had only a very attenuated connection with terms and conditions of employment.  She made the posts because she was upset that he [the other bartender] was passing off low-grade drinks as premium liquor and management was condoning the action.  Unlike the situation in Georgia Farm Bureau the Charging Party did not reasonably fear that her failure to publicize her coworker's dishonesty could lead to her own termination.  Although she later stated that she was concerned that the bartender's conduct would cause customers to stop buying drinks or lower their tips if they found out, she did not state this concern in her posts.  And this assertion is belied by the fact that she was communicating with customers about the bartenders' conduct, which if anything would cause the impact on the business she now asserts she was trying to prevent. 

Advice's analysis is spot on.  In this case, we have a gripe damaging to the business that is really unrelated to the person's terms and conditions of employment.  Indeed, it appears that management took action against the bartender who allegedly was passing off "low-grade" liquor as premium; it doesn't seem as though Charging Party ever herself reported her felow bartender to management.  The inappropriateness of Charging Party's conduct is further demonstrated by the fact she was turned into management by a fellow bartender. 

Like the BMW salesman's case, the discharge was found to be unlawful despite the existence of an overbroad policy.  Review your policies.

The Advice memorandum in The Rock Wood Fired Pizza & Spirits (NLRB Case No. 19-CA-32981).pdf issued September 19, 2011.

These two cases show that while these types of cases have garnered a lot of attention, the law remains the same as before the advent of Facebook and other social media. 

Rhyme or Reason? Trying to Make Sense of the NLRB's Social Media Cases

Posted by Scott Faust on October 12, 2011

Since the NLRB’s Office of the General Counsel (“OGC”) issued the first “Facebook” complaint in American Medical Response of Connecticut, Inc. in October, 2010, dozens of unfair labor practice charges involving social media have been filed, the Acting General Counsel has identified social media cases as a priority, and gallons of electronic ink have been spilled by commentators and the OGC, itself, trying to help employers and their counsel make sense of it all.  The law is still developing – it has only been a few weeks since an ALJ rendered the first decision in a Facebook case – but thus far, social media cases have been evaluated and decided on the basis of existing legal principles.  There has been no indication that existing rules will be modified or adapted to meet the realities of the digital world, despite fundamental differences in the character of on-line communications versus more traditional forms of employee communication.  Though the rules may be familiar, applying them to social media cases is a challenge.

The majority of cases generally fall into two categories, with some overlap: (1) those involving discipline based upon employee conduct on social media sites and (2) those challenging employer social media policies as overbroad and unlawful restrictions on employees’ rights under the NLRA.  With the stated intention of offering assistance to labor law practitioners and HR professionals, NLRB Acting General Counsel Lafe Solomon issued a report this past August explaining the rationale underlying the OGC’s decisions in a sampling of the key social media cases within the last year (OM 11-74 Report of the Acting General Counsel Concerning Social Media Cases). 

When is employee conduct on social media sites protected by the NLRA?

The cases to date make clear that existing standards defining protected concerted activity will be used to evaluate employees’ social media activities.  Non-union employers must not lose sight of the fact that their employees are also protected by the NLRA and these standards apply whether or not employees are represented by a union. 

  • An employee’s activity is concerted when the employee: 
    • acts with or on the authority of other employees;   
    • seeks to initiate or to induce or to prepare for group action;
    • brings “truly group complaints” to management’s attention. 
  • Discussions between or among employees must be “a logical outgrowth” of group action or collective goals. 
  • An employee’s activity is not concerted when the employee acts alone or on behalf of him or herself, regardless of whether other employees may benefit and regardless of whether the object of the employee’s action is something about which other employees would be concerned.   
  • Disparaging comments about an employer, including supervisors, are generally protected, but they may lose the Act’s protection when they: 
    • are unrelated to a dispute over working conditions; 
    • focus only on the employer’s products or business policies, particularly if the criticism comes at a “critical time” for the employer 
    • are reckless or maliciously untrue; 
    • are appeals to racial, ethnic or similar prejudices; o 
    • are insulting or obscene personal attacks that cross an ill-defined “I know it when I see it” line of propriety.

The difficulty of applying these principles to social media cases is aptly illustrated by the first “Facebook” case to be decided by an ALJ, Hispanics United of Buffalo, Inc., which was decided on September 2, 2011.  In that case, the ALJ found that a nonprofit, non-union employer violated the NLRA by terminating five employees who had engaged in protected concerted activity.  Specifically, they had engaged in a Facebook discussion concerning another employee’s criticism of their job performance that included vulgar language.  In so ruling, the ALJ recognized that individual action can be protected as concerted action as long as it is engaged in with the object of initiating or inducing group action.  The facts of the case, however, indicate that there was no evidence of the terminated employees’ intent to take group action beyond their Facebook postings.  The ALJ nonetheless concluded that the terminated employees were “taking a first step towards taking group action,” and by terminating them, the employer prevented them from taking any further group action.  

Distinguishing Hispanics United from cases in which no concerted activity was found -- e.g., where an individual employee posted a complaint that received supportive messages from co-workers but did not otherwise manifest any intent to induce group action -- can be challenging.  For example, in another case discussed in the Acting GC’s report, Wal-Mart, No. 17-CA-25030, the OGC declined to issue a complaint where an employee was disciplined for posting vulgar comments to his Facebook page that were critical of local store management.  Although other employees submitted supportive comments, the OGC found that the postings were an expression of an individual gripe that was not protected concerted activity.  In so finding, the OGC noted that the Facebook posts contained no indication of the employee’s intent to initiate or induce group action – just like the Facebook posts in Hispanics United.  

Though the Wal-Mart case and several others described in the Acting GC’s Report manifest the OGC’s recognition that there are limits to the scope of protected concerted activity in the social media context, the conclusion by the ALJ in Hispanics United that the terminated employees’ Facebook posts were protected because they were “taking a first step towards taking group action” presents employers with the difficult task of deciding when to infer an individual employee’s intention to take group action and when to treat a post as an individual complaint.  In this regard, the fact that all five employees who participated in the Facebook exchange were terminated was significant.  The ALJ specifically found that the employer’s termination of all five employees for their Facebook postings established that the employer viewed the five as a group and that they were engaged in concerted activity.  

Though these cases are highly fact-specific, and though application of the operative legal principles to the facts of each case can be difficult, a few guidelines do emerge from the body of cases reported thus far: 

  • Employee conduct on social media sites that expressly engages co-workers or seeks to promote group action with respect to an issue related to terms and conditions of employment will be protected.
  • An individual employee’s social media post will likely be protected if it suggests implicitly or explicitly an intention to promote group action or support, particularly if it solicits co-worker comments.
  • An individual employee’s social media post that does not expressly solicit co-worker input but nonetheless generates co-worker comments that grow into a substantive conversation concerning terms and conditions of employment may well be protected.
  • An individual employee’s social media post that is neither directed to co-workers nor engages co-workers, or a post that does not address issues of mutual concern to other employees will likely be treated as an unprotected individual gripe or complaint.
  • Disparaging comments concerning the employer and/or supervisors will be protected, even if they include vulgar or rude language, unless they are so outrageous or offensive as to lose the protection of the NLRA.
  • Discriminatory comments or posts that advocate unlawful action will not be protected.

In applying these guidelines, employers are well advised to consider the NLRB’s renewed emphasis on protecting employee rights to engage in protected concerted activity, as well as its general interest in expanding employee access to digital media and facilitating employee communication.  They should also be mindful of the Acting General Counsel’s aggressive posture in these cases.  Accordingly, before implementing disciplinary action, employers should consult with counsel and carefully weigh the risks of running afoul of the emerging law in this area.

What is the lawful scope of a social media policy?

As in the employee discipline cases, cases involving challenges to employers’ social media policies as overbroad and unlawful restrictions on employee rights under the NLRA have also, thus far, applied well-established legal principles without modification or adaptation to any particular attributes of social media communications: 

  • An employer violates NLRA Section 8(a)(1) through the maintenance of a policy that “reasonably tends to chill” employees in the exercise of their rights under Section 7 of the Act to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 
  • If the policy does not explicitly restrict Section 7 activities, it is unlawful only upon a showing that (1) employees would reasonably construe the language to prohibit protected activity, (2) the policy was promulgated in response to union activity, or (3) the policy has been applied to restrict the exercise of Section 7 rights.

As in the social media disciplinary cases, the cases involving challenges to social media policies are highly fact-specific.  Examples of unlawful policies addressed in the Acting GC’s Report include:

  • Prohibition against posting pictures that depict the company was unlawfully overbroad because it would prohibit employees from engaging in a protected activity like carrying a picket sign or wearing a t-shirt portraying the company’s logo in connection with a labor dispute.
  • Prohibition in hospital social media policy against communications that compromise privacy, embarrass or defame the hospital or its staff, or damage the goodwill of the hospital was unlawfully overbroad where the policy did not define what the hospital considered to be private or confidential, nor did it contain a disclaimer informing employees that it did not apply to protected Section 7 activity.
  • Prohibition against posting anything that would disclose “inappropriate or sensitive” information about the employer was unlawful in the absence of any definition or guidance as to the nature of the prohibited subjects.
  • Prohibition against using the company name, address or other information in employees’ personal profiles was unlawfully overbroad because it interfered with employees’ ability to find and communicate with their coworkers on-line and was not narrowly drawn to protect a legitimate interest of the employer.
  • Prohibition against revealing personal information regarding co-workers without their consent was unlawfully overbroad and could be reasonably interpreted as restraining employees’ Section 7 right to discuss wages and other terms and conditions of employment.
  • Prohibition against “disrespectful conduct” or “rude or discourteous behavior,” was unlawfully overbroad where the policy did not contain a disclaimer informing employees that it did not apply to protected Section 7 activity.

Two unifying themes emerge from the unlawful policies summarized in the Acting GC’s Report:

  1. They were not narrowly tailored to serving a well-defined, legitimate business need; and
  2. Their broadly worded prohibitions could reasonably be read to restrict employees’ exercise of protected Section 7 rights and they did not disclaim any such unlawful intention. 

Indeed, one of the lawful policies addressed in the Acting GC’s Report aptly illustrated these points.  That policy instructed employees to respond to all media inquiries by (i) replying that that they were not authorized to comment for the employer or did not have the information being sought, (ii) taking the name and number of the media organization, and (iii) relaying the information to the employer’s public affairs office.  The OGC concluded that this policy was lawful because it served the employer’s legitimate business interest of communicating to the media with one voice, and it was not so broadly worded as to lead employees reasonably to think they were prohibited from exercising Section 7 rights to talk to the media on their own behalf about their working conditions.

Employers are well-advised to implement and enforce social media policies.  Whether the workplace is unionized or not, however, such policies must not be so broadly worded as to explicitly or implicitly restrict employees’ right to engage in protected concerted activities or to discourage (or “chill”) employees’ exercise of their rights.  Policies should clearly articulate the legitimate business interests sought to be protected or achieved through the policy, and the restrictions should be narrowly tailored to serve those legitimate interests.  Though disclaimers are not required, and though they do not, in and of themselves, provide an absolute defense, the inclusion of express language disclaiming any intention to restrict employee rights under the NLRA can be helpful to defeat claims that employees may reasonably interpret the policy to restrict their rights.

This is a rapidly evolving area, and with so many cases in the pipeline, the law is sure to continue to develop.  We will keep you posted on those developments.

NLRB Issues Complaint in NY Facebook Case

Posted by Scott Faust on May 20, 2011

In its latest effort to address social media in the workplace, the National Labor Relations Board announced in a May 18 press release that it had filed a complaint against a New York non-profit organization alleging that it unlawfully terminated five employees who complained about working conditions on Facebook.

According to the complaint filed by Buffalo Regional Director Rhonda Ley, Hispanics United of Buffalo’s termination of five employees who criticized workload and staffing conditions on Facebook constituted an unfair labor practice. 

The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients.  The initial post generated responses from four other employees who defended their job performance and criticized working conditions, including workload and staffing issues. After learning of the posts, Hispanics United discharged all five employees, claiming that their comments constituted harassment of the employee originally mentioned in the Facebook post.

The complaint alleges that the Facebook discussion was protected concerted activity under Section 7 of the National Labor Relations Act because it involved a conversation among fellow employees about the terms and conditions of their employment, including their job performance and staffing levels.  A hearing is scheduled for June 22, 2011.

In its recent settlement of a similar case involving an employer in Connecticut, American Medical Response (AMR), the NLRB warned employers against maintaining policies that restrict the right of workers to discuss jobs conditions with coworkers using social media.  Unlike the AMR case, the NLRB complaint against Hispanics United does not allege that the employer maintained an unlawful policy; the complaint focuses exclusively on the employer’s termination of the five employees who participated in the Facebook conversation.  Moreover, whereas the AMR case involved unionized employees, the five employees terminated by Hispanics United were non-union employees – illustrating the fact that Section 7 rights extend to all employees, whether unionized or not.

The Hispanics United complaint also follows closely on the heels of a highly publicized case involving Twitter, in which the NLRB declined to issue a complaint against the Arizona Daily Star.  Based on the Hispanics United complaint and the Board’s press release announcing issuance of the complaint, however, it appears that the factors that led the Board to decline to issue a complaint in the Arizona Daily Star case -- which involved a single employee's inappropriate and offensive Twitter posts on subjects unrelated to terms and conditions of employment – are not present in the Hispanics United case.

The Hispanics United complaint further reinforces the Board’s focus on social media issues in the workplace.  Indeed, Acting General Counsel, Lafe Solomon, has indicated that there were social media cases pending in every Region.  Further, citing significant policy issues and lack of precedent, an April 12, 2011 memorandum issued by the Acting General Counsel directed Regional Directors to submit all cases involving “employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter” to the Division of Advice before any taking any action.

Given the Board’s focus on social media issues and the apparent volume of pending cases implicating these issues, we expect this to be a rapidly developing area to which employers should pay close attention.  We will continue to monitor the Board’s views on social media and provide updates on significant developments.  In the meantime, employers should review existing policies and consider the Board’s emerging position on this issue when disciplining employees for behavior that may be considered to fall within the expanding scope of protected concerted activity.

NLRB General Counsel Allows Discharge for Inappropriate "Tweeting"

Posted by Michael Lebowich on May 17, 2011

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Employee use of social media remains at the forefront of issues at the National Labor Relations Board.  Coming on the heels of the NLRB General Counsel’s decision to issue a complaint against an employer who fired an employee for her postings on Facebook (the first time such on-line activities were considered “protected, concerted activity” by the Agency), the NLRB’s Division of Advice recently issued an Advice Memorandum stating that an employer did not violate the National Labor Relations Act when it terminated an employee for writing “unprofessional and inappropriate” comments on his personal Twitter account.

In early 2010, a “crime and safety beat” reporter for the Arizona Daily Star began posting a series of controversial tweets on his Twitter account – which he independently operated and controlled although it identified him as a reporter for the Daily Star.  His Tweets commented on both his manager's and his own views of crime (and crime reporting) in Tuscon, including:

  • “The Arizona Daily Star’s copy editors are the most witty and creative people in the world. Or at least they think they are.”
  • “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”
  • “Suggestion for new Tucson-area theme song: Droening [sic] pool’s ‘let the bodies hit the floor.’”
  • In response to a misspelling in a tweet by a Tucson-area television news station: “Um, I believe that’s PEDAL. Stupid TV people.”

After the tweet about the paper's copy editors, the reporter was instructed that, even though the Daily Star did not have a formal social media policy, in the future he was “prohibited from airing his grievances or commenting about the Daily Star in any public forum.”  The reporter, however, continued posting controversial tweets - - leading to his suspension and eventual discharge for tweeting insensitively about homicides and in other manners which drew negative attention to the Daily Star.

Although the reporter claimed he was fired for engaging in activity protected by the National Labor Relations Act, the Division of Advice disagreed.  Instead, it decided that the “inappropriate and offensive” Twitter postings were not protected activities, because they “did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.”

In what should be a warning to other employers dealing with social media issues, the Division of Advice did conclude that the paper's initial directive to the reporter not to air his grievances in public could be interpreted as an illegal prohibition against activities protected by Section 7.  However, since the statement was only made to a single employee and the Daily Star made its decision to discharge based on the comments unrelated to that statement, it saw no reason to issue a complaint on that issue.