Over the course of the last year, the National Labor Relations Board (NLRB or Board) has taken an active role in regulating social media use in the workplace, broadly expanding its view of employee activity protected under the National Labor Relations Act (NLRA or act). This article explores the NLRB’s treatment of social media cases to date, and offers practical guidance for employers seeking to regulate their employees’ on- and off-duty use of social media.

Background

Social media use in the workplace catapulted onto the labor law scene in October 2010, when the NLRB filed a complaint against American Medical Response of Connecticut (AMR), a non-union employer, for discharging an employee who posted negative comments about her supervisor on Facebook. Alleging the employee’s discharge violated the NLRA, the complaint proffered an expansive view of employee actions protected under the act.

Section 7 of the NLRA grants employees the right to engage in “concerted activities” for the purpose of collective bargaining or other mutual aid or protection. This section has been interpreted to protect discussions among employees relating to the terms and conditions of employment. In this case, the employee’s remarks about her supervisor sparked several Facebook responses from her coworkers. Though the “discussion” took place entirely on a social media platform, the NLRB concluded that it amounted to a protest of supervisory actions and thus fell well within the protection of NLRA §7. See American Medical Response, NLRB Case No. 34-CA-12576 (AMR).

The NLRB also took issue with the employer’s blogging and Internet posting policy, which prohibited employees from making disparaging remarks when discussing the company or supervisors, and from depicting the company in any media without company permission. The Board alleged this policy would prohibit employees from engaging in protected concerted activities, thereby violating §8(a)(1) of the NLRA, which makes it unlawful for an employer to “interfere with, restrain, or coerce” employees in the exercise of their §7 rights.

Though the case ultimately settled, AMR revealed the Board’s expansive—and in many ways, unprecedented—interpretation of employee social media rights under the NLRA. In addition to expanding the reach of the act to social media discussions, even for non-union employees, AMR foreshadowed the Board’s subsequent efforts to regulate social media activity in the workplace. Following the settlement of AMR, the NLRB began to actively investigate a number of employers for alleged social media violations, prompting further development and discussion on the subject.

AGC Memos

On May 30, 2012, Lafe Solomon, the NLRB’s Acting General Counsel (AGC), released his third memo within the last year addressing social media use in the workplace. See Memorandum OM 12-59, available at http://mynlrb.nlrb.gov/link/document.aspx/09031d4580a375cd. Designed to provide guidance to employers seeking to regulate their employees’ social media activity, these memos detail specific examples of NLRA violations based on investigations conducted by the Board. The memos generally expound upon the position taken in AMR, emphasizing that employee §7 rights must be at the forefront of employer considerations when disciplining employees for their social media use and when crafting corporate social media policies.

Employee Disciplinary Actions. The AGC’s first memo on social media in the workplace (August 2011 memo) deals primarily with employees who were either disciplined or discharged based on their social media activity. See Memorandum OM 11-74, available at http://mynlrb.nlrb.gov/link/document.aspx/ 09031d458056e743. Generally, the AGC found that employees were engaged in concerted activity protected under the NLRA when they used social media platforms to discuss the terms and conditions of their employment with fellow employees. For example, in one case, an employee and her four coworkers were fired for a Facebook discussion criticizing another employee’s job performance and complaining about workload issues. Describing the case as a “textbook example of concerted activity,” the AGC determined that the employees’ Facebook discussion was protected under the NLRA and, consequently, their termination was found to be unlawful.

The AGC stressed that to fall within the scope of the Act, an employee’s social media activity must be both protected and concerted: It must relate to the terms and conditions of employment and seek to involve other employees in a discussion of these issues. Accordingly, he refused to extend NLRA protection to an employee whose Facebook post expressed frustration regarding a personal dispute with a manager. Though several coworkers posted supportive comments in response, the AGC concluded that the discussion did not amount to concerted activity, as it contained no language suggesting group involvement. As a general matter, employee comments that express individual frustrations constitute mere gripes and do not amount to the concerted activity protected under the NLRA.

The AGC reiterated this principle in his second memo on social media in the workplace (January 2012 memo). See Memorandum OM 12-31 available at http://mynlrb.nlrb.gov/link/document.aspx/ 09031d45807d6567. In one case, an employee updated her Facebook status with a comment that consisted of an expletive and the name of her employer. Four individuals, including one of the employee’s coworkers, “liked” the status. Later, the employee posted another comment that her employer did not appreciate its employees. Though several of the employee’s friends and relatives commented, none of her coworkers responded.

The AGC concluded that the employee’s comments were not protected under the NLRA because the posts contained no language suggesting that the employee sought to initiate or induce her coworkers to engage in group action. Her termination was thus deemed lawful. As this case illustrates, social media postings protected under the Act must be made in relation to group activity; NLRA protection is not triggered by a simple click of the “Like” button.

Employer Social Media Policies. In the January 2012 memo, the AGC also took issue with a number of corporate social media policies, which he found to “chill” employees in the exercise of their §7 rights. If the policy could at all be construed to restrict employee discussion of the terms and conditions of employment, the AGC concluded that it was unlawful under the NLRA. For instance, an employer policy that prohibited “[m]aking disparaging comments about the company through any media” was deemed unlawful because it could reasonably be construed to restrict §7 activity, such as statements that the employer was not treating employees fairly or paying them sufficiently.

Going a step further, the AGC also concluded that another employer’s blanket confidentiality provision—which prohibited employees from releasing confidential guest, team member, and company information over social media—gave rise to a violation NLRA §8(a)(1), as it “would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves—activities that are clearly protected by Section 7.” On a similar note, the AGC took issue with the breadth of a social media policy that cautioned that “[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.” According to the AGC, this provision proscribes a broad spectrum of communication, including activity protected under §7.

Only one of the seven policies reviewed in the May 2012 memo was deemed lawful in its entirety. As the AGC explained, policies “that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful.” The policy that passed muster, developed by Wal-Mart in response to an employee’s allegation that he was unlawfully terminated due to comments he posted on his Facebook page, was found to provide sufficient examples of prohibited conduct. See Walmart, NLRB Case No. 11-CA-67171.

For example, Wal-Mart’s policy prohibits “inappropriate postings that may include discriminatory remarks, harassment and threats of violence.” The AGC approved of this provision, as it is clearly limited to egregious conduct. Similarly, a section of the policy entitled “Be Respectful” counsels that prohibited social media behavior includes “offensive posts meant to intentionally harm someone’s reputation” and “posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.” The AGC determined that with these examples, Wal-Mart avoided the potential pitfall of an overbroad rule. The AGC also approved of the policy’s provision requiring employees to maintain the confidentiality of company trade secrets and private information, as it gives “sufficient examples of prohibited disclosures (i.e., information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions.”

Employer Recommendations

While providing some insight on social media activity protected under the NLRA, the AGC’s memos underscore the challenges for employers seeking to take disciplinary action or craft policies based on employee use of social media. Although social media in the workplace is still a relatively new, and rapidly evolving, area of the law, there are a number of steps employers can take to protect themselves.

Employee Disciplinary Actions. Though the NLRB has liberally construed social media activity protected under the NLRA, disciplining an employee is lawful if: (1) the posting does not address the terms or conditions of employment; (2) the employee acted alone in making the social media posting; or (3) the posting is deemed to be egregious and offensive. If the employee’s social media activity does not clearly fall into one of these categories, employers should tread carefully when deciding whether to take disciplinary action.

Employer Social Media Policies. Employers should also take care to draft social media policies that will withstand NLRB scrutiny. Listed below are several guiding policies for employers to bear in mind.

• Avoid vague and overly broad terms. Employers should consider using limiting language and context to clarify that the policy does not prohibit employee discussions of the terms and conditions of employment. Policies that are carefully worded and narrow in scope will be less likely to be found to violate the NLRA.

• Give specific examples of prohibited behavior. Employers should consider providing clear examples of prohibited behavior so that employees cannot reasonably construe the policy to preclude §7 protected conduct.

• A “savings” clause is not a cure-all. While the AGC has made clear that a “savings clause”—a disclaimer that states the policy does not violate an employee’s §7 rights—will not cure an otherwise unlawful or ambiguous policy, adding such a clause may still prove beneficial.

• Let Wal-Mart serve as a guide. To date, Wal-Mart’s social media policy is the only policy the AGC has approved of in its entirety. Although Wal-Mart revised its policy after a former employee filed a claim for unlawful termination, the AGC concluded that the legality of the new policy made it unnecessary to determine whether the policy that preceded it violated the NLRA. Employers should thus consider using Wal-Mart’s policy as a guide in drafting or revising their own social media policies, and take note that policy revisions may be a viable option if charged with an NLRA violation.

Final Thoughts

The AGC’s memos represent the NLRB’s current position on social media use in the workplace. They do not constitute binding law, but rather cautionary guidance, and should be viewed as such. Further, employers do maintain a legitimate basis for seeking to regulate some employee activity, most prominently in areas that concern the dissemination of trade secrets or confidential information, the duty of loyalty, defamation, or harassment.

While it remains to be seen how the views reflected in the AGC’s memos will be received in court, they are enough to put employers on notice to the facts on which cases will be brought. Until further guidance from the courts or the NLRB is provided, employers should take care to review their existing policies and consider the implications of the Board’s recent decisions before taking action based on employee use of social media.

Social media websites such as Facebook, Twitter, and LinkedIn have dramatically altered the way people communicate with each other, particularly in the workplace. Employees are increasingly resorting to status updates and hashtags to air their work-related frustrations, prompting employers to take greater efforts to monitor what their employees are saying online.

David Schwartz is a partner in the labor and employment law group at Skadden, Arps, Slate, Meagher & Flom. Ashly Davis, a summer associate, assisted in the preparation of this article.