[author: Heather L. Macdougall]

Two recent rulings by the National Labor Relations Board (Board) involving employees' use of social media make it clear that employers who want to avoid violating federal labor laws are well served to revisit their social media policies and, perhaps along with their counsel, take a close look at whether these policies violate the National Labor Relations Act (Act).  Although a September 28, 2012 ruling from the Board shows that not all employee social media posts will be considered protected by federal labor laws, this ruling and another recent ruling on September 7, 2012 leaves employers still unsure of where the agency draws the line.

While some employers may wrongly assume that the Act does not apply to their non-unionized workplaces, actually it does.  Section 7 of the Act governs both union and nonunion employees alike. It protects employees who engage in "other concerted activities for the purpose of … mutual aid or protection."  The Board has found that Section 7 grants rights to employees' use of social media. 

On September 7, 2012, the Board decided that Costco's employee policies were "too broad" when it came to the use of the Internet and social media. Specifically, the electronic communications rule found in Costco's employee handbook advises that company employees, "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."  While the employer's policy might sound reasonable on the surface, the Board held that employees could interpret the policy as prohibiting activity that is protected the Act. The Board stated that the employer's policy "does not present accompanying language that would tend to restrict its application. It therefore allows employees to reasonably assume that it pertains to — among other things — certain protected concerted activities, such as communications that are critical of [Costco's] treatment of its employees."  As such, the policy didn’t exclude communications among workers that are protected by Section 7 and was unlawfully broad.  

Even more recently, in a September 28, 2012 ruling, the Board did not draw the line any clearer.  In a case involving an employee fired over Facebook posts, the NLRB concluded in Karl Knauz Motors Inc. that the employer was within the bounds of the Act when it fired a salesman for posting Facebook photos and comments related to an accident at an adjacent Land Rover dealership, which is also owned by the company. The Board found in this case that the postings did not constitute protected, concerted activity.  In the Karl Knauz Motors case, the Board concluded that the salesperson was lawfully fired for these posts.

However, the Board did not consider whether a second set of posts from the same day mocking the food his employer served at an event introducing a new BMW model were protected.  The salesman had attended a promotional sales event and posted photos of it on his Facebook page. The sales event was organized by the BMW dealership, and several of its salespersons voiced criticisms of the inexpensive food that was offered to attendees, including hot dogs and chips. On his Facebook page, a salesman posted photos of employees of dealership eating the food at the event, and underneath the photos he posted comments that mocked the food served there.

Karl Knauz Motors had an employee handbook with a rule reminding employees to be courteous to others, stating, "Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership."  When the company learned of both postings, they questioned the salesman about his actions, who allegedly showed no regret for his actions. The company told him that other dealerships saw the postings, which hurt Knauz's image.  The salesperson was terminated for the Land Rover posting.

On a positive note, the Board's Karl Knauz Motors decision indicates that employers may take disciplinary action based on social media postings that are entirely unrelated to the workplace.  However, because the Board did not  consider the second set of postings, which commented on the employee's own workplace, the Board's decision offers employers only limited guidance concerning the types of posts upon which they can base disciplinary actions.

What do these decisions mean for employers both small and large?  Neither of these decisions give employers much guidance on where to draw the line on employees' protected versus unprotected postings using social media. However, it's apparent that the NLRB is taking keen interest in how employers treat both union and nonunion workers when it comes to the use of social media.  Effectively, the NLRB has called into question any policy by a company that broadly states employees can be disciplined for posting comments online that the employer views as damaging to the company.  

What this should tell employers is that a review of their social media policies with legal counsel may help them determine if they’re likely to be in violation of the federal labor laws. If a company has a social media policy, employers may wish to consider providing specific examples of what they believe falls under "damaging to the company" rather than simply broadly prohibit such discussion and should avoid ambiguous rules that could be construed against them or the use of generic terms like "unprofessional" or "inappropriate."  Further, employers might want to go so far as to include language in their policy that defines "protected concerted activities" pursuant to the National Labor Relations Act and state that the employer's policy is not intended to interfere with such conduct protected by the Act.  Employers are also well-advised to consult counsel before carrying out a decision to terminate an employee for a social media posting.