Last month, employers received a little more help from the National Labor Relations Board (NLRB or Board) in formulating social media policies that pass muster under scrutiny from the Board. On October 19, 2012, an Associate General Counsel (AGC) for the NLRB provided a useful and well organized opinion in response to a request from an NLRB Regional Director. The request was for advice as to whether an employer’s social media policy violated the National Labor Relations Act (NLRA), and whether an employee’s termination because of a violation of that policy violated the NLRA. In that memorandum, the AGC concluded that the employer’s policy was not overly broad and did not violate the NLRA. He further concluded that the employer did not unlawfully discharge an employee for an electronic posting that violated the employer’s policy. In re:Cox Communications, Inc., Case 17-CA-087612 (October 19, 2012).
The situation arose when an individual, employed by Cox Communications, Inc. (Cox Communications), as a technical support representative, posted a comment to his “Google+” account, in response to a customer’s negative and very personal comment to him during a troubleshooting phone call. The posting included the “F-word” directed to the customer. A supervisor saw the posting and reported it to management. The employee was suspended and an investigation was undertaken during which it was discovered that the employee had engaged in other, similar postings that also included lewd language which disparaged customers. Ultimately, the employee was fired for his Google+ postings. In response, he filed a charge with the NLRB, alleging that the company’s social media posting violated his rights under the NLRA.
An employer violates Section 8(a) of the NLRA if its policy would “reasonably tend to chill employees in the exercise of their Section 7 rights.” Section 7 of the NLRA allows employees to engage in protected concerted activity, in order to allow them to discuss terms and conditions related to employment. The NLRB has developed a two-step process to determine whether a policy might violate Section 8. First, it determines whether the policy violates the NLRA by explicitly restricting Section 7 protected activities. Second, if the policy does not explicitly restrict those activities, the Board reviews it to determine whether the policy still may violate the NLRA if an employee could “reasonably construe” the language as prohibiting protected activity; or if the policy was promulgated in response to union activity; or if the policy has been applied to restrict such activity. While the Board will not find a violation simply because a policy can conceivably be read to restrict protected activity, it can (and typically will) find a violation if a policy contains no limiting language or context that would clarify to employees that their Section 7 rights are not restricted.
Cox Communications’ social media policy included acceptable limiting language and context. Its restrictions were spelled out in detail: “DO NOT make comments or otherwise communicate about customers, coworkers, supervisors, the Company, or Cox vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on the basis of age race, religion, sex, sexual orientation, gender identity or expressions, genetic information, disability, national origin, ethnicity, citizenship, marital status, or any other legally recognized protected basis under federal, state or local laws, regulations or ordinance.” In addition, the policy included a “savings clause” that stated specifically that nothing in the policy “is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment.”
In his analysis, the AGC pointed to that detailed policy provision as providing context regarding the “reasonableness” of the policy. Whereas a rule simply proscribing “negative conversations” about a manager, with no further clarifications or examples, would be unlawful because of a potential chilling effect on protected activity, Cox Communications’ policy provided a lost list of “plainly egregious conduct,” and “clearly would not be reasonably understood to restrict Section 7 activity.”
The AGC also pointed out that the policy’s “savings clause . . . further ensures that employees would not reasonably interpret any potentially ambiguous provision in a way that would restrict Section 7 activity.” Based on the wording of the policy, the Board concluded that the termination of the technical support representative was lawful, because the Google+ post was not concerted activity for mutual aid and protection within the meaning of Section 7 of the NLRA. Concerted activity is defined to include “circumstances where individual employees seek to initiate or to induce or to prepare for group action.” Clearly, the employee’s vulgar comments were directed at a customer in anger, and not on behalf of coworkers or others, and could not be construed as concerted activity. Further, the company’s investigation of the matter before firing the individual evidenced a considered and thorough review of the situation.
What Employers Need to Know:
Take-aways from this matter are clear: (1) social media policies should include limiting language or other context that would clarify to employees that Section 7 rights are not restricted; (2) a “savings clause” that specifically states that the policy is not meant to prevent concerted communications can support a Board finding that the policy is lawful; and (3) a practice of prompt and thorough investigation of an employee’s posting, including objective and thorough documentation, prior to taking adverse action against the employee will help to support the appropriateness of the action.
Maria Greco Danaher is a shareholder in the Pittsburgh office of Ogletree Deakins.