Use of Facebook, Twitter, LinkedIn and myriad other social media sites by employees has exploded in recent years. Employees venting on these far-reaching networks about their frustrations in the workplace have the potential to create workplace harassment issues, damage their employers’ business reputations and broadcast their employers’ confidential information to the world. Yet, there may be limitations on the actions employers can take without contravening the National Labor Relations Act (NLRA), regardless of whether their employees are represented by a labor union, as an employee’s social media posts regarding terms and conditions of employment may be deemed protected concerted activity. This month’s column discusses the guidance that has been provided by the National Labor Relations Board to date in this evolving area.

Background

Most employers had probably never considered how Facebook and other social media would interact with labor law until the board’s Hartford regional office issued a complaint in October 2010 against a Connecticut ambulance company alleging, among other things, that an employee’s discharge for posting negative remarks about her supervisor on her personal Facebook page violated the NLRA. See American Medical Response, NLRB Case No. 34-CA-12576.

Section 7 of the NLRA protects the rights of employees (unionized or non-unionized) to engage in “concerted activities,” which include conferring regarding terms and conditions of employment. Lafe Solomon, the board’s Acting General Counsel (AGC), described American Medical Response as a straightforward case, stating, “[W]hether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.” See Greenhouse, Steven, “Company Accused of Firing Over Facebook Post,” New York Times¸ Nov. 8, 2010, available at http://www.nytimes.com/2010/11/09/business/09facebook.html.

While the case ultimately settled, it led to an onslaught of social media cases raised through the board. As a result, the AGC asked the board’s regional offices to submit social media cases to the board’s Division of Advice (within the Office of the General Counsel), in the interest of tracking them and devising a consistent approach.

AGC Reports

In August 2011, the AGC issued a report detailing the outcome of his office’s investigations into a number of social media cases. See Memorandum OM 11-74, available at http://mynlrb.nlrb.gov/link/document.aspx/09031d458056e743. Various Facebook postings were found to constitute protected activity under the NLRA, including employees complaining to each other (with expletives) about their employer’s tax withholding practices; a commission-paid employee posting pictures and sarcastic commentary criticizing the inexpensive manner in which his employer conducted a sales event; an employee posting negative comments about a supervisor who was investigating a customer complaint against the employee; and multiple employees posting comments criticizing the work performance of their co-workers and staffing-level problems. Notably, each of those cases involved employees who criticized specific employment practices or work conditions, and they all involved online discussions among multiple employees.

In an effort to provide further guidance to employers, on Jan. 24, 2012, the AGC issued a second report (January 2012 Report) describing additional social media cases his office reviewed. See Memorandum OM 12-31, available at http://mynlrb.nlrb.gov/link/document.aspx/09031d45807d6567.

The January 2012 Report underscores two points made in the earlier survey: (1) an employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees; and (2) employer social media policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. The January 12 Report also provides additional insight into how the board may evaluate social media cases in several areas.

Inciting Action

The January 12 Report indicates that social media posts will more likely be found protected by the NLRA where they incite active participation from co-workers in the online discussion. For instance, the AGC’s office found that an employee working for a collections agency was engaged in protected concerted activity when she posted a Facebook status update with an expletive complaining that a supervisor had reassigned her without good cause. The employee’s posting was followed by an online dialogue that included expressions of support by several current and former employees of the company who added their own criticisms of the employer and even discussed a possible class action against the company.

On the other hand, an employee of a chain of home improvement stores, upset that a supervisor reprimanded her in front of a manager, updated her Facebook status with an expletive and the name of the employer’s store. Several individuals, including one co-worker, indicated they “liked” that status. However, when the employee added a comment that the company did not appreciate its employees, no co-workers responded. The AGC’s office concluded the Facebook postings were merely individual gripes, not protected by the NLRA, because she “had no particular audience in mind when she made the post” and “the post contained no language suggesting that she sought to initiate or induce coworkers to engage in group action.”

The January 2012 Report also signifies that social media postings that are a direct result of prior offline concerted activity will likely be protected. For example, a hospital nurse made various posts on Facebook and online message boards about the hospital’s poor management style which allegedly included bullying, harassment, abuse of employees and unfair firings that had been ongoing for at least three years, in response to which several co-workers posted messages of support, e.g., “Thank you for speaking for us who do not dare.” Since the posts were found to be part of an ongoing labor dispute related to the hospital’s treatment of employees and a “logical outgrowth of other employees’ concerns,” they were found to be protected by Section 7.

Preemptive Strikes

Significantly, in 2011 the board considerably expanded the scope of protected concerted activity in cases outside the social media context, and the January 2012 Report suggests these broadened concepts will be applied in social media cases. The board in Parexel International, LLC, 356 NLRB No. 82 (Jan. 28, 2011), held that even when an employee had not engaged in concerted activity but instead made an individual complaint to her employer about a perceived wage disparity, the employer violated the NLRA by discharging the employee to prevent the possibility that she might engage in concerted activity in the future (a so-called preemptive strike).

Relying on Parexel, the January 12 Report states that an employer’s discharge of an administrative assistant, who posted Facebook comments complaining about being reprimanded by her employer for her involvement in a co-worker’s work-related problems, was an unlawful preemptive strike. The AGC’s office found the company president knew other employees came to the administrative assistant for advice about working conditions and had previously counseled her not to offer them her opinions because of a fear of what may follow from those discussions.

New Standard

The January 2012 Report also sets forth a potential new standard for judging whether social media posts are so egregious that they lose the protection of the NLRA, as the AGC’s office for the first time recognized that statements made on the Internet can cause greater harm to the workplace than conversations around the water cooler.

In a case involving a woman fired from a packaging facility following a Facebook posting severely criticizing the company and its operations manager, the AGC’s office analyzed whether her posting somehow lost the protection of the NLRA. The new test that was applied was a modified Atlantic Steel, 245 NLRB 814 (1979), analysis—traditionally used to analyze communications between employees about supervisors and whether such communications undermine workplace discipline—that also borrows from the Jefferson Standard test established by the Supreme Court in NLRB v. IBEW, Local No. 1229 (Jefferson Standard), 346 U.S. 464 (1953).

The Jefferson Standard test has traditionally been used to analyze handbills meant to appeal to the general public, with an eye toward whether such communications are so disparaging of the employer or its product as to lose the protection of the NLRA. Applying this hybrid test, the AGC’s office found that the fact that the Facebook discussion at issue occurred at home during non-work hours, was not accompanied by verbal or physical threats and was not in any way critical of the employer’s product or business policies weighed in favor of finding that the Facebook posting did not lose protection of the NLRA.

Employer Policies

The board has not pronounced any specific rules for employers to follow in drafting social media policies. However, based on the guidance to date, it seems that policies prohibiting social media posts that violate the company’s rules against discrimination or harassment or requiring employees to comply with SEC and FTC regulations in their online posts are unlikely to violate the NLRA. On the other hand, we can glean from the January 2012 Report several types of provisions that the board would likely view as overbroad and in violation of NLRA §8(a)(1), which makes interference with collective activity an unfair labor practice.

For instance, the January 2012 Report suggests a policy prohibiting use of social media to post pictures depicting the company in any way, such as pictures containing the company uniform or logo, is unlawful. The AGC’s office found employees have a right to use the company’s logo to communicate with other employees or the public about a labor dispute.

The January 12 Report also found that a policy barring employees from “making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors” would reasonably be construed to restrict Section 7 activity, such as statements that the employer is not treating employees fairly or paying them sufficiently. Policies generally prohibiting “offensive conduct,” “inappropriate discussions,” or “rude and discourteous behavior” were found to be overbroad for similar reasons.

In addition, the January 2012 Report suggests that a policy broadly prohibiting employees from disclosing or communicating confidential, sensitive or non-public information concerning the company to anyone outside the company is unlawful. Such a restriction offers no examples of what is considered confidential or sensitive and precludes employees from discussing their wages and other terms and conditions of employment.

Moreover, the AGC’s office found inappropriate a provision providing “that employees needed approval to identify themselves as the employer’s employees and that those employees who had identified themselves as such on social media sites must expressly state that their comments are their personal opinions and do not necessarily reflect the employer’s opinions.” The January 12 Report states that such a provision stifles employees’ ability to locate other employees, thus, inhibiting their ability to organize, a protected right under Section 7.

Significantly, the January 12 Report states that a “savings clause” or disclaimer (e.g., clarifying that the policy will not apply to any activity protected by the NLRA) will not cure an otherwise overbroad social media policy.

Pending Decisions

Three cases involving social media questions are currently pending before the board. In Hispanics United of Buffalo, NLRB Case No. 3-CA-27872, the administrative law judge (ALJ) ruled that a Buffalo non-profit organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including workload and staffing issues. In Karl Knauz BMW, NLRB Case No. 13-CA-46452, the ALJ held that an employee’s termination for posting photos (including sarcastic commentary) of an accident at a neighboring Land Rover dealership owned by Knauz was not unlawful, as the posts had no connection to any terms and conditions of employment. In Triple Play Sports Bar, NLRB Case No. 34-CA-12915, the ALJ found that the employer unlawfully terminated two employees for participation in a Facebook conversation regarding their employer’s withholding of taxes, and that the NLRA protected an employee whose only involvement in that online discussion was to click the “Like” button on the Facebook page.

It is expected that the board’s rulings in these cases will provide employers with further guidance on how to tailor their social media practices and policies.

John P. Furfaro is a partner at Skadden, Arps, Slate, Meagher & Flom. Risa M. Salins is a counsel at the firm.