Joan Vecchioli and Sarah Manthey
Social media sites are the modern day water coolers as many employees take to social media outlets to air their workplace gripes. Before disciplining an employee for his or her social media posts, employers are cautioned to review their obligations under the National Labor Relations Act (“NLRA”). Additionally, employers’ seemingly straightforward and innocuous social media policies may violate the NLRA.
Most employers are surprised to learn that the NLRA can be applied to both union and non-union settings. Under the NLRA, both union and non-union employees have a right “to engage in collective activities, for the purpose of collective bargaining or other mutual aid or protection.” As a result, an employee’s social media post could be considered a protected activity under the NLRA. Moreover, an employer’s overbroad social media policy could be deemed to have a chilling effect on an employee’s protected activities under the NLRA.
Consider the case of Hispanics United of Buffalo, Inc. brought before an Administrative Law Judge for the National Labor Relations Board (“NLRB”) on the issue of Facebook firings. In this case, five employees were terminated from their employment as a result of their Facebook posts. The terminated employees worked for a non-profit organization that provided social services to economically disadvantaged clients in Buffalo, New York. In response to criticisms about their job performance, one of the employees took to her Facebook page during non-working hours. Some of her co-workers responded to her post by posting their own comments, defending their work performance and addressing the demands of the job. Another co-worker brought the posts to the attention of management and all five employees were terminated from employment.
The Administrative Law Judge found that the Facebook posts were protected activities under the NLRA. The posts addressed the employees’ job performance and the employees “were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [a co-worker] was going to make to management.” As a result, the panel ordered that the five discharged employees’ jobs be reinstated and awarded them back pay.
Compare the case of Karl Knauz Motor, Inc. d/b/a Knauz BMW with the Hispanics United of Buffalo, Inc. case above. In the Knauz case, an employee was terminated for his Facebook posts regarding two work incidents. The terminated employee was a salesperson at a BMW dealership. The first series of posts and photographs were taken by the employee at a BMW “Ultimate Driving Event” showcasing the brand’s new 5-series model car. The pictures and posts poked fun at the “cooked wiener and stale bunns [sic],” chips, bottles of water, and “semi fresh apples and oranges” served at the event. The second series of posts and pictures on the employee’s Facebook page highlighted an accident at an adjacent Land Rover dealership. There, a salesperson was injured when a thirteen year old boy accidently drove a Land Rover vehicle into a pond. Other local dealerships brought the pictures and posts to the attention of management and the employee was terminated.
The Administrative Law Judge found that the employee’s Facebook pictures and posts regarding the food served at the BMW soirée were protected activities under the NLRA. The employee’s compensation was based in part on commissions and the employee had previously complained about the quality of the event as having a negative effect on sales. As such, the pictures and posts were considered protected activities. The Administrative Law Judge found that the employee’s posts regarding the accident at the Land Rover dealership was not protected, however, because they did not relate to his terms and conditions of employment. Because the Administrative Law Judge also found that the employee was terminated for his pictures and posts in connection with the accident, and not concerning the food at the BMW event, the termination was upheld.
The Administrative Law Judge further analyzed the employer’s handbook to determine whether its policies could be construed to chill an employee’s rights under the NLRA. Certain provisions of the handbook were held in violation of the NLRA because an employee’s compliance with their terms would restrict him or her from discussing working conditions with union representatives, lawyers, or Board agents.
Employers would likely be shocked to learn that an employee may not lose the protection of the NLRA by calling his or her supervisor an “a-hole” or a “cheap son of a bitch.” Regardless of the tone used or the unpleasant nature of the post, employers are cautioned to analyze carefully whether a post implicates a protected right under the NLRA and concerns working conditions.
The NLRB has considered numerous social media policies to ensure that employers do not restrict employees’ lawful activities. Sometimes logical, well-intentioned social media policies do not pass muster under the NLRA. The following statements are examples of unlawful, overly restrictive social media policies that have been interpreted to infringe upon an employee’s protected rights under the NLRA:
- “Don’t release confidential guest, team member or company information;”
- “You should never share confidential information with another team member unless they have a need to know the information to do their job;”
- “[B]e sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site;”
- “Check with ‘employer’ to see if [the social media post] is a good idea;”
- “Think carefully about ‘friending’ co-workers;” and
- Warnings to employees not to “pick fights.”
The General Counsel for the NLRB issued Memorandum 12-59 to give guidance to employers on developing and implementing lawful social media policies. Memorandum 12-59 lists additional examples of unlawful social media policies and provides further analysis under the NLRA and relevant case law.
Employers should also be aware that the U.S. Supreme Court granted certiorari review over a decision from the U.S. Court of Appeals for the District of Columbia Circuit, striking three of President Obama’s recess appointments to the NLRB as unconstitutional. An affirmance of this ruling by the high court may mean that numerous decisions made by the NLRB could be invalidated including those regarding social media in the workplace. On July 30, 2013, however, the Senate confirmed all of President Obama’s nominees to fill the vacancies on the NLRB. The NLRB is now fully appointed which removes questions regarding the legality of Board decisions from this point forward.
In the meantime, employers of every size are encouraged to consult with a labor and employment lawyer to ensure compliance with the NLRA before terminating an employee for his or her social media posts or before implementing a social media policy. Please contact us if we can help you navigate through this tangled web of social media law.