Nemeth Burwell's Patricia Nemeth
Nemeth Burwell's Erin Behler
The National Labor Relations Board's involvement with social media disciplinary issues first made headlines in October 2010 when the NLRB's Connecticut regional office filed a complaint against the American Medical Response of Connecticut, alleging the company illegally fired an employee for posting and responding to negative statements about her supervisor on Facebook. The complaint also alleged that the company maintained an overly broad social media policy. The NLRB and AMR settled the case in February 2011 after AMR agreed to revise its social media policy to "ensure that [AMR did] not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work." AMR also agreed that it "would not discipline or discharge employees for engaging in such discussions." Additional details involving the employee's discharge were resolved separately through a private confidential agreement. See Am. Med. Response of Conn., NLRB Case 34-CA-012576.
The National Labor Relations Act, under Section 7, provides that employees, both unionized and non-unionized, have the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection," including discussions among employees regarding wages and working conditions. It is clear that Section 7 protects traditional means of communication between employees, such as face-to-face communication, as well as communication over the Internet and on social media sites. Unlike traditional means of communication, when employees use social media they reach more people and it is more difficult for employers to control. The NLRB's recent investigations into complaints filed, starting with the AMR matter, provide insight into how the NLRB would rule if presented with a social media issue involving employee discipline. Since October 2010, following the NLRB's issuance of the AMR complaint, the NLRB has investigated and/or issued several additional "Facebook/Twitter firing" complaints. Only recently, on Sept. 2, 2011, did the NLRB finally issue a ruling on a "Facebook" case, officially holding in Hispanics United of Buffalo, Inc. v. Carlos Ortiz that off-hours complaints by employees about their working conditions on Facebook were protected by the NLRA.
In early April 2011, the NLRB's Manhattan regional office informed Thomson-Reuters that the NLRB planned to file a complaint against Reuters for allegedly reprimanding an employee who had criticized company management on Twitter. Reuters allegedly verbally disciplined one of its reporters after she posted a message on Twitter that said, "One way to make this the best place to work is to deal honestly with Guild members." The reporter said she was responding to a Twitter posting from a supervisor inviting employees to comment about how to make Reuters the best place to work. The next day, the reporter's supervisor contacted her at home to advise her of Reuters' policy prohibiting comments on social media sites that would damage the company's reputation. While Reuters denies that it disciplined the reporter, the reporter complained that she felt threatened and intimidated after contact from her supervisor. The NLRB also planned to allege that Reuters' social media policy resulted in the chilling of employees' ability to discuss working conditions. The matter was resolved, prior to the NLRB filing a complaint, when the Guild and Reuters (which had been negotiating a new contract) agreed that the new social media policy would include language protecting employees' speech and the right to engage in other concerted activity about working conditions.
On the heels of the NLRB's plan to file a complaint against Reuters, the NLRB's San Francisco office was also dealing with a social media disciplinary issue. On April 27, 2011, the NLRB regional director in San Francisco approved a settlement agreement between Build.com, a Web-based home improvement company, and a former employee. Build.com allegedly fired the former employee for posting comments about the company's possible state labor code violations on her Facebook page. Her co-workers (her Facebook friends) responded by posting comments of their own. Even though not represented by a union, the former employee filed a charge with the NLRB. She alleged she was fired for communicating with co-workers about terms and conditions of employment in violation of the NLRA. Importantly, the NLRA protects the discussions of unionized, as well as non-unionized, employees when those discussions pertain to terms and conditions of employment. After the charge was issued, the company offered to engage in settlement discussions. As part of the settlement, Build.com agreed to post a notice at the workplace for 60 days stating that employees had the right to comment about the terms and conditions of employment on their social media pages and that they would not be terminated or otherwise punished for exercising that right.
In May 2011, the NLRB scrutinized two "Facebook firings" by filing two additional complaints. The first complaint was issued out of the Buffalo, N.Y., regional office on May 9 against Hispanics United of Buffalo, a nonprofit social service provider. See Hispanics United of Buffalo, Inc. v. Carlos Ortiz, Case 3-CA-27872. The complaint alleges that the firing of five employees who posted comments on Facebook regarding working conditions constituted improper interference with protected rights guaranteed in Section 7 of the NLRA. According to the NLRB decision, a HUB employee on Facebook posted the following: "... a coworker feels that we don't help our clients enough at HUB I about had it! My fellow coworkers how do u feel?" This initial post appeared shortly after the co-worker told the HUB employee who made the post that she was going to raise these concerns with management. The post generated comments on Facebook from other HUB employees who defended their job performance and criticized HUB's working conditions, including workload and staffing issues.
After learning of the Facebook posts, HUB fired the five employees who participated. The company indicates the five employees were terminated because they harassed the employee who claimed other co-workers were not adequately assisting HUB's clients. These five employees allegedly harassed the employee in and outside the workplace through various actions including the Facebook comments. Notably, this NLRB complaint did not target HUB's social media policy.
A hearing was held July 13-15, 2011, and on Sept. 2, 2011, in the first ruling of its kind, an administrative law judge found that HUB unlawfully discharged the five employees. The ALJ reasoned that the employees "communications with each other, in reaction to a co-worker's criticisms of the manner in which HUB employees performed their jobs, are protected" under Section 7 of the NRLA. According to the ALJ, the five employees were "taking the first step towards taking group action to defend themselves against the accusations" by the co-worker. They reasonably could have believed this co-worker would be taking these accusations to management. The communication between the five employees was protected even though there was no attempt to change working conditions and they had not informed HUB about their concerns. The ALJ noted that the Facebook posts were not made at work or during working hours. Finally, the ALJ rejected HUB's position that the terminated employees had violated its harassment policy finding that the employees did not engage in any conduct that forfeited their protection under the NRLA. HUB was ordered to immediately reinstate the five employees with back pay and benefits. HUB has the right to appeal the decision to the NRLB in Washington, D.C.
The second complaint, filed on May 20, 2011, originated out of the Chicago regional NLRB office. The complaint, filed against a Chicago-area luxury car dealership, alleged that the company illegally fired an employee for posting comments on his Facebook page that were critical of the dealership. See Karl Knauz Motors, Inc., d/b/a Knauz BMW v. Robert Becker, Case 13-CA-46452. According to the NLRB, the employee and his co-workers had face-to-face discussions about how their sales commissions might be negatively impacted because of the quality of food and beverages served at the dealership's event promoting a new BMW model. After the event, the employee posted photos and comments on his Facebook page regarding his co-workers' concerns about the hot dogs and bottled water served to customers at the event. Other employees were able to access the comments on his Facebook page. After the dealership's management learned of the Facebook postings, they asked the employee to remove the posts and he immediately complied. However, after the meeting the dealership terminated the employee for posting the images and comments. The NLRB appeared to allege in its vague complaint that the dealership terminated the employee, in part, to discourage other employees from engaging in similar activities (the discussion of working conditions on Facebook and other social media forums) and therefore violated Section 8(a)(1) of the NLRA by "interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7" of the NLRA. A hearing was set for July 21, 2011, in Chicago.
On Sept. 28, 2011, an ALJ found that the dealership did not violate the NLRA when it fired the employee for his Facebook postings. The ALJ determined that, although the postings related to the sales event did, in fact, constitute protected activity, the employee was not fired for that specific post. Rather, the employee was fired because of another Facebook posting he made regarding a separate incident at a neighboring Land Rover dealership. In that posting, which was not referenced in the NLRB's original complaint and press release, the employee commented and posted pictures about an accident that occurred at a Land Rover dealership after a salesperson let a customer's 13-year-old son sit in the driver's seat of a vehicle. The ALJ held that the Land Rover posting was "obviously unprotected" because it was made "without any discussion with any other employee of the [dealership] and had no connection to any of the employees' terms and conditions of employment." In reaching his conclusion, the ALJ found the testimony of the dealership's witnesses more credible than the testimony of the employee. The dealership's witnesses testified that they thought the Facebook posting about the sales event was "comical" and that the employee was solely fired for the Land Rover posting, which, according to the witnesses, was "making light of an extremely serious situation."
Importantly, the NLRB's Division of Advice has made a distinction between statements about working conditions (protected concerted activity) and personal gripes (not protected concerted activity). The NLRB's Division of Advice is responsible for issuing opinions on difficult or novel labor issues. Social media disputes have recently been added to a list of matters that must be submitted to the Division of Advice before a decision on whether to file a complaint is made at the regional level. In an April 2011 memorandum from the NLRB's Division of Advice, the NLRB found that the Arizona Daily Star newspaper did not violate the NLRA when it terminated a reporter for writing inappropriate and offensive comments on his personal Twitter account because the Twitter postings did not involve protected concerted activity under Section 7 of the NLRA. See Lee Enterprises, Inc., d/b/a Arizona Daily Star, Case 28-CA-23267 (April 21, 2011).
According to the NLRB's Advice Memorandum, the Daily Star encouraged its reporters to use Twitter and to determine how social media tools could be used to disseminate information to the public, but had no formal social media policy. A "crime and safety belt" reporter for the Daily Star opened a Twitter account, started following co-workers and supervisors on Twitter, identified himself on his Twitter profile as a reporter for the Daily Star, and included a link to the Daily Star's website. In early 2010, the reporter posted the following tweet commenting on a series of sports headlines: "The Arizona Daily Star's copy editors are the most witty and creative people in the world. Or at least they think they are." A week later, after a meeting with the human resources director and later with several other managing editors, the Daily Star prohibited the reporter from "airing his grievances or commenting about the Daily Star in any public forum."
The reporter initially complied with the newspaper's request and refrained from making public comments about the Daily Star. That did not last. In August 2010, the reporter again began tweeting the following:
· "You stay homicidal, Tucson. See Star Net for the bloody deets."
· "What?!?!?! No overnight homicide? WTF? You're slacking Tucson."
· "Suggestion for new Tucson-area theme song: Droening [sic] pool's 'let the bodies hit the floor.'"
· "Hope everyone's having a good Homicide Friday, as one Tucson police officer called it."
· "My discovery of the Red Zone channel is like an adolescent boy's discovery of his … let's just hope I don't end up going blind."
· In response to a misspelling in a tweet by a Tucson-area television news station: "Um, I believe that's PEDEL. Stupid TV people."
The Tucson-area television station took issue with the "stupid TV people" comment, and emailed the Daily Star. Several days later, the reporter was fired for tweeting insensitive, derogatory and inappropriate comments about homicides and for tweeting in other ways that violated the Daily Star's "Respectful Workplace Guidelines" and damaged the Daily Star's goodwill.
The reporter claimed he was fired for engaging in protected concerted activity in violation of Section 8(a)(1) of the NLRA and that he was disciplined pursuant to an unlawful rule that prevented him "airing his grievances or commenting about the Employer in any public forum," thus prohibiting certain Section 7 activities. The NLRB Division of Advice disagreed. Instead, it decided that the "inappropriate and offensive" Twitter postings were not protected activities, because they "did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment."
The Division of Advice decided that the Daily Star's initial directive to the reporter not to air his grievances in public could be interpreted as an illegal prohibition against activities protected by Section 7. However, since the statement was only made to a single employee and was not considered a new "rule," and because the Daily Star made its decision to discharge the reporter based on the comments unrelated to the initial directive, the NLRB saw no reason to issue a complaint on that issue.
It appears that, in the NLRB's view, the Daily Star's actions did not violate the NLRA because the tweets leading to the reporter's termination did not relate to the employee's terms and conditions of employment. Instead, the tweets were an insensitive commentary on homicide and the intelligence of a local television station. In addition, the tweets did not seek to involve other employees in issues related to employment at the Daily Star.
Likewise, in July 2011, the NLRB Division of Advice recommended the dismissal of three unfair labor practice charges in three separate matters involving employee use of Facebook because the comments posted by the employees were "an expression of an individual gripe" and did not seek "to initiate, induce, or prepare for group action." In a charge filed against Wal-Mart, an employee argued he was unlawfully disciplined for engaging in protected activity when he posted comments on his Facebook page that insulted his assistant manager and called her criticisms of his work "retarded." The employee concluded his Facebook rant with "Walmart can kiss my royal white a**." The NLRB Division of Advice found that, although co-workers responded to the employee's posts, they were expressions of individual "emotional" support and not group action. For instance, one employee said he found the post to be humorous and another said "hang in there." See Wal-Mart, Case No. 17-CA-25030 (July 19, 2011).
The Division of Advice recommended the dismissal of the other two charges because co-workers did not participate in the Facebook conversations and therefore, the conduct for which the employees were terminated did not constitute protected concerted activity. Although the postings may have discussed individual concerns regarding terms and conditions of employment (although most of them did not), the comments did not "attempt to initiate group action" and "did not grow out" of concerns expressed collectively among employees. For example, in JT's Porch Saloon, Case No. 13-CA-46689 (July 7, 2011) the employee posted comments during a Facebook conversation with his sister which said he "hadn't had a raise in five years" and that he hoped his employer's "redneck" customers would "choke on glass as they drove home drunk." In Martin House, Case No. 34-CA-12950 (July 19, 2011), an employee at a nonprofit facility for the homeless posted comments (while she was working on the overnight shift) about how "spooky" it is working alone "in a mental institution," the "voices" her clients hear, and how the clients would "just pop meds."
In contrast, the Facebook postings in the other "Facebook firing" cases discussed above did involve terms and conditions of employment and did seek to involve other employees in the discussions of those issues. In some instances, overly broad employer social media polices, which could chill the employees' ability to discuss such issues, also played a part in either settlement or the NLRB's issuance of a complaint.
At this juncture, employers should:
· Review the language in their social media policies to ensure the policies are specific and not overly broad which could be interpreted as unlawfully preventing employees from exercising their Section 7 rights under the NLRA;
· Include language in social media policies exempting from enforcement discussions in social media forums that are protected under the NLRA;
· Determine how social media policies are being implemented and interpreted so that Section 7 rights are protected in a consistent manner;
· Review the content of postings, tweets or blogs to determine if the content concerns terms or conditions of employment or relates to other issues;
· Review the context of postings, tweets or blogs to determine if the communication constitutes "discussions" of conditions of employment or seeks to involve other employees in discussions regarding conditions of employment;
· Determine if the post is merely a personal gripe and/or whether the responses posted are "emotional support" or a statement about employment conditions.
· Keep up-to-date on NLRB rulings to ensure the employer's actions and policies continue to comply with the NLRB's rulings in the social media area.
Patricia Nemeth (pnemeth@nemethburwell.com) is a partner and Erin Behler (ebehler@nemethburwell.com) is an associate at Nemeth Burwell, P.C., which specializes in employment litigation, traditional labor law and management consultation for private and public sector employers and works exclusively with management to prevent, resolve and litigate labor and employment disputes.
