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.