As the National Labor Relations Board's (NLRB) August 2011 report on social networking and the first NLRB decision in this area make clear, employee social media activity can be "protected concerted activity" under the NLRA, even if nonunion employees are using social media sites to criticize their employers.
Section 7 of the NLRA gives employees "the right to self-organization, to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." "Employees" under the NLRA include nearly any employee except "supervisors" (a narrowly defined term). Thus, nonsupervisory employees—including many "exempt" salaried employees—have the right under the NLRA to engage in "concerted" activities for the purpose of their mutual aid or protection. Concerted activities lose their protection under the act, however, if sufficiently opprobrious or, under an alternate test, if disloyal, reckless, or maliciously untrue.
In August the NLRB's Acting General Counsel's Office issued a report addressing its recent determinations as to employer responses to social media activity. To date, only one of the NLRB cases described in the report has been decided. In September the administrative law judge in Hispanics United of Buffalo Inc. held that a nonprofit social services provider unlawfully terminated five employees in response to their Facebook posts.
The Facebook thread began when one employee commented, "Lydia . . . a coworker feels that we don't help our clients enough at HUB I about had it! My fellow coworkers how do u feel?" Four other employees responded with comments such as "What the hell, we don't have a life as is, What else can we do?" There were posts with more offensive language, and posts that sarcastically characterized the company's clients as lazy and unappreciative. Upon learning of the social media activity, the company terminated all five employees for violating its zero-tolerance harassment policy.
Consistent with the position set out in the general counsel's report—which characterized this Facebook thread as a "textbook" example of concerted activity—the administrative law judge held that the employees' discussion of criticisms of their job performance constituted concerted activity, and that it is "irrelevant" that the employees were not trying to change their working conditions or report their concerns to management.
As to whether the profanity-laced Facebook posts about a named coworker were protected, the administrative law judge held that they weren't offensive enough to bring the concerted activity outside the NLRA's protection. The general counsel's report likewise described the posts as "objectively innocuous." Outside its discussion of Hispanics United , the report concluded that the NLRA would even protect a Facebook post referring to a supervisor as a "scumbag," stating, "The name-calling was not accompanied by verbal or physical threats, and the board has found more egregious name-calling protected."
The report also explained that a single employee's social media activity can be "concerted" if it grows out of a conversation with coworkers. The NLRB found protected a car-dealership employee's posting of photographs of him and his coworkers mocking the quality of refreshments set out for customers at an advertised sales event. The NLRB explained that the activity clearly related to the employees' "terms and conditions of employment" under the tangential reasoning that the quality of refreshments could affect sales and that decreased sales, in turn, would affect their commissions. The report explained that even though a single employee posted the photos and no employees responded to the posts, the activity was "concerted" because it "vocaliz[ed] the sentiments of [the employee's] coworkers."
In another case, however, the NLRB did not find "concerted" a bartender's griping to a family member about his employer's tipping policy where the Facebook post did not grow out of a conversation he had with coworkers and no coworkers responded to it.
In addition to discussing what con duct is protected under the NLRA, the general counsel's report opined that several employment policies were unlawful as a result of prohibiting such conduct. The NLRB stated that employers could not enforce blanket prohibitions on employees making disparaging comments about supervisors, engaging in rude or discourteous conduct, using social media outlets for "inappropriate discussions," or posting photographs of themselves that depict a company logo. However, a policy that requires employees to direct all media inquiries to designated employees was found to be lawful, as it could not reasonably be interpreted to prevent employees from speaking to the media about their own wages and other terms and conditions of employment.
In light of the NLRB's broad view as to what social media activity is protected, employers should consider ways to prepare for employees who "like" the board's approach. First and foremost, employers should take caution before disciplining employees for the content of their social media activity.
Although the law under the NLRA in this area is just starting to develop, employers should consider the following factors: (1) whether the employee is using a social media platform to comment on wages, benefits, hours, and other terms and conditions of employment; (2) whether the social media activity appears to be undertaken on behalf of a group of employees, authorized by a group of employees, or otherwise related to group actions; (3) whether the employee's coworkers had access to the social media postings; and (4) whether coworkers responded to or otherwise participated in the social media discussion or posting and, if so, whether their responses suggest group action.
As a practical matter, since many disciplinary decisions are made without consulting with inside or outside counsel, considering these factors means training human resources employees and supervisors about the NLRA's protection of social media activity.
Additionally, companies should review employment policies—including policies on Internet use, policies prohibiting company disparagement, policies prohibiting the display of company logos, and those policies vaguely prohibiting unprofessional conduct—to ensure that they do not forbid protected concerted activity. Many broadly worded policies likely can be brought into compliance through carve-out language stating that the policy does not prohibit employees from exercising their section 7 rights under the NLRA. Explicitly referencing such NLRA rights in employment policies may avert potential challenges to a policy's legality in various contexts. Such policy language will also draw attention to the issue of concerted protected activity for any human resources employees or supervisors considering "defriending" an employee for violating one of these policies through their social media activity.
Kilpatrick Townsend partner Randy Avram is chair of the firm's labor and employment team. Avram acts as national and regional employment litigation and labor counsel for several Fortune 100 companies. Associate Michael Rosenberg focuses on all aspects of labor and employment law.
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