Social Media & Protected Activity: Not Always a Third Rail for Employers

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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The efforts of the National Labor Relations Board (NLRB) to expand the definition of employee activity protected by section 7 of the National Labor Relations Act (NLRA) and its aggressive prosecution of employers alleged to have violated worker rights is well chronicled. It is completely understandable, therefore, that many human resources professionals and in-house counsel are reluctant to discipline employees when there is even a hint of protected concerted activity.

Employer reluctance to take disciplinary action is nowhere more evident than in connection with employees’ use of social media. Employers will have the tools they need to make accurate, informed business decisions if they promptly and carefully evaluate the relevant facts and keep up with the latest legal developments in this ever-changing area.

A case in point is the NLRB’s February 12 decision in World Color (USA) Corp., 360 NLRB No. 37 (2014). In World Color, a three-member panel of the Board reversed an administrative law judge’s determination after trial that the company had violated the NLRA. The case involved a supervisor who allegedly made negative comments to an employee regarding the employee’s Facebook posts.

The Facts

For a period of approximately six months, a member of the union’s negotiating committee allegedly posted comments on his Facebook page criticizing the company and discussing the union in response to another individual’s Facebook post. The employee was Facebook “friends” with several coworkers as well as his supervisor.

When a downturn in business required the company to reduce its workforce and reassign employees to different jobs within the plant, the employee who had posted the Facebook comments was one of the many workers reassigned to a different position. The employee asked his supervisor why the company was reassigning employees. The supervisor purportedly stated that “it was not always about production” and that “management knew about” the Facebook posts. He also rhetorically asked, “Don’t you think that they know about what you posted on Facebook?”

The Administrative Law Judge’s Decision

The administrative law judge (ALJ) concluded that the supervisor’s statements interfered with, restrained, and coerced the employee in the exercise of his rights guaranteed by federal labor law—that is, the right of employees to exchange posts on social networking sites commenting on terms and conditions of employment. In a unanimous decision, the NLRB reversed the ALJ’s decision and, in so doing, provided a helpful reminder to employers that not all posts on social networking sites by employees constitute protected concerted activity.

The NLRB’s Ruling

In dismissing the allegation, the NLRB first observed that the trial record did not contain actual printouts of the employee’s Facebook posts and included very limited information regarding their content. The only evidence presented was testimony that the posts were purportedly “critical” of the company. Second, there was insufficient evidence that the posts actually concerned working conditions, or that they were intended for, or in response to, the employee’s coworkers.

The NLRB concluded that the evidence presented was insufficient to establish that the Facebook posts constituted protected concerted activity. And, the supervisor’s statement that the company reacted negatively to the alleged critical posts did not, standing alone, establish a violation of the law. In order to prove that the company committed such a violation, the NLRB needed to establish (i) that the supervisor’s statement was directed at, or in response to, either actual or suspected protected concerted activity, or (ii) that the employee would have reasonably understood the supervisor’s statements as coercing him from engaging in such activity.

Key Takeaways & Best Practices

The NLRB’s World Color decision is consistent with current case law defining the scope of employee activity protected by section 7 of the NLRA. For example, in Parker Laboratories, Inc., 267 NLRB 1174, 1177-1178 (1983), the NLRB ruled that an employee’s complaints to fellow workers regarding the employer’s alleged failure to “live up to a commitment for a higher starting salary for him” did not constitute concerted activity. In the last few years, the NLRB’s Office of the General Counsel has issued operations-management memoranda—Memorandum OM 11-74 and Memorandum OM 12-31—which include examples of both protected and unprotected posts that employees have placed on social networking sites.

World Color demonstrates that posts on social networking sites need not constitute a third rail creating liability in all cases for employers. A best practice when confronted with issues or claims involving employees’ use of social media is to have counsel collect the relevant information and critically analyze each of the elements of the NLRB’s prima facie case. Doing so may identify useful affirmative defenses to ensure that the NLRB retains the ultimate burden of proof to establish the violations alleged.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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