Section 7 of the National Labor Relations Act (“NLRA” or the “Act”), 29 USC § 157, protects both union and non-union employees who form, join and assist labor unions, participate in collective bargaining, and engage in “other concerted activities for mutual aid or protection.” Because this federal law covers both union and non-union workplaces, the National Labor Relations Board (“NLRB” or the “Board”), an independent federal government agency, has recently found in a growing number of cases that non-union Employers’ discipline or discharge of employees for improper conduct on social media, and management’s social media policies in non-union workplaces, were unlawful.
Social media has made a dramatic impact on the workplace. With more than one billion users each month, Facebook is likely accessed by every organization’s employees at and outside of work. With employees logging onto Facebook and other social media sites, companies had often drafted policies or followed practices that prohibited employees from disparaging the Employer, supervisors, or fellow workers, and from sharing information about the Employer online. In the last two years, however, the NLRB, in a series of reports and enforcement actions, has moved dramatically to restrict management’s regulation of employee use of social media.
In enforcing the NLRA, which applies to virtually all private employers in the United States, the Board has long held that Section 7 of the Act’s provision concerning employees who engage (in both union and non-union workplaces) in “concerted activities for mutual aid or protection” covers workers who talk about wages and working conditions around a workplace water cooler. Now, with employees discussing wages and working conditions on social media sites, the NLRB has acted aggressively to expand the NLRA’s protections from the water cooler to the Internet.
Social media policies held unlawful by the NLRB include those that prohibit employees from engaging in inappropriate discussions, posting materials that embarrassed or disparaged the Employer or employees, posting personal information about employees or customers, disclosing sensitive Employer information, or using the Employer’s logo. The Board found fault with these policies because they could reasonably be interpreted as prohibiting protected communications about terms and conditions of employment, or because they did not exclude protected concerted activity.
The NLRB’s enforcement activities have focused generally on two categories of cases:
(a) The Board has ruled that the Employer’s social media policy is overly broad and unlawfully limits employees’ use of social media as a means of exercising their rights under the Act. In other words, simply having the policy is unlawful.
(b) The Board has ruled that the Employer unlawfully disciplined or discharged an employee for use of social media where such use constituted protected concerted activity.
In August 2011 (Memo OM 11-74), January 2012 (Memo OM 12-31) and May 2012 (Memo OM 12-59), the NLRB’s acting general counsel issued reports concerning social media cases. These reports and the Board’s recent enforcement actions indicate that the NLRB will generally find unlawful social media policies that (a) are not drafted narrowly to serve a well-defined, legitimate business need, and (b) contain broadly worded prohibitions that could reasonably be read to restrict workers’ exercise of protected NLRA rights. Accordingly, whether the workplace is unionized or not, social media policies must not be so broadly phrased as to chill or restrict employees’ rights to engage in concerted protected activities.
The NLRB acting general counsel issued a complaint alleging that an employer unlawfully terminated an employee for posting negative comments about her supervisor on the employee’s Facebook page. American Medical Response of Connecticut (Oct. 27, 2010). The NLRB announced on February 7, 2011, that the case settled after the employer agreed to resolve its overly broad rules.
In AT&T Connecticut, 356 NLRB No. 118 (Mar. 24, 2011), the Board held that the employer violated the Act when it suspended workers who wore “Prisoner” t-shirts to the homes of customers to publicize a labor dispute.
In Dresser-Rand Company, 358 NLRB No. 34 (Apr. 19, 2012), the Board ruled that maliciously false statements to a third party are not protected by the Act. In the course of a labor dispute, a union shop steward left voice mail messages for Wall Street analysts identifying himself as a representative of the union employees and making negative remarks about company operations, including the false assertion of a 50 percent drop in production. The administrative law judge (ALJ) upheld the company’s discharge of the employee, finding that the “entire purpose” of the shop steward’s statement “was to harm the company.” The NLRB affirmed.
In Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012), the Board held that a policy in Costco’s employee handbook directing employees to use “appropriate business decorum in communicating with others” did not violate the NLRA. However, the NLRB ruled that Costco’s rule prohibiting employees from posting messages that “damage the company, defame any individual or damage any person’s reputation,” violated the Act.
In Knaus BMW, 358 NLRB No. 164 (Sept. 28, 2012), the NLRB held that a worker could reasonably interpret the employer’s “courtesy” policy that prohibited “disrespectful conduct” to construe a limit on the employee’s rights under the Act. The Board accordingly found that such a broad “courtesy” policy violated the NLRA.
In Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012), the Board upheld an ALJ’s decision that terminations at a non-profit organization over Facebook postings were unlawful. The Board reasoned that in analyzing whether comments are entitled to protection, the same Meyers Industries, 281 NLRB 82 (1986), analytical framework that the NLRB has long applied to oral communications among co-workers at a water cooler should be applied to employees using social media.
In DirectTV U.S. DirectTV Holdings LLC, 359 NLRB No. 4 (Jan. 25, 2013), the Board held unlawful the Employer’s policies that barred contact with the media unless pre-authorized by the Employer, that directed employees not to discuss details about their jobs with anyone outside of the company, that prohibited employees from disclosing non-public company information, and that required employees to contact the security department to handle “law enforcement” interviews and requests for information. The Board explained that the pre-authorization rule for media contact unlawfully required permission from an Employer as a precondition to engaging in protected concerted activity on employees’ free time and in non-work areas. The NLRA further concluded that prohibiting employees from discussing details about their jobs unlawfully limited discussion about terms and conditions of employment. Likewise, the Board reasoned that prohibiting employees from disclosing non-public company information could be understood to prohibit employees from exercising their rights under Section 7 to disclose fellow employees’ compensation, performance and discipline data. In addition, the NLRB asserted that requiring workers to contact the Employer’s security department to handle “law enforcement” interviews and requests for information could unlawfully restrain employee contact with the Board and other “law enforcement” agencies concerning wages, hours and other terms and conditions of employment.
Nevertheless, Employers’ social media policies are lawful where they clearly prohibit illegal conduct using social media, such as discriminatory harassment of co workers. Further, Employers’ social media policies may prohibit employees’ disclosure of confidential business (financial, sales data, and customer but not compensation data) information and trade secrets. In addition, the NLRA does not protect individual gripes. Conduct must be concerted in order to be protected.
Accordingly, Employers can revise or draft social medial policies to comply with the Act. Wal-Mart, for example, received NLRB approval for its modified social media policy that prohibits inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct. In addition, Wal-Mart’s amended policy includes specific descriptions of misconduct, which satisfied Board scrutiny.
Employers should review their social medial policies and practices, and revise them if required to meet the requirements of the NLRA. Sedgwick’s Employment and Labor Law attorneys stand ready to assist your company in establishing social medial policies and practices that promote your organization’s interests while complying with the Act. (The U.S. Court of Appeals for the District of Columbia Circuit held earlier this winter that recent NLRB recess appointments by President Obama were invalid. Noel Canning v. NLRB, 2013 WL 276024 (D.C. Cir. Jan. 25, 2013). Although that decision, which the administration is appealing to the U.S. Supreme Court, raises questions about some of the NLRB rulings cited above, the Board has taken the position that the D.C. Circuit’s decision is limited to that circuit. Moreover, the underlying principles concerning Section 7 of NLRA continue to apply in any event.)