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USA: Attention all employers (unionized or not!) – Does your social media policy violate the NLRA? Top 10 lessons from the NLRB in 2011
With the explosion of social media use in the workplace, the National Labor Relations Board (NLRB) is actively scrutinizing employer social media policies and considering to what extent employees' online postings fall under National Labor Relations Act protection. Section 7 of the NLRA protects employees (in both unionized and non-unionized workplaces) who engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Employers are prohibited from taking any action that might "chill" an employee's ability to engage in protected concerted activities, even if only as few as two employees are involved.
In 2011, the NLRB's Acting General Counsel – who decides which unfair labor practice charges to prosecute against employers – released a report summarizing many of the social media cases he (or his staff in the Division of Advice) have addressed over the last year. NLRB Administrative Law Judges also issued the first two decisions analyzing whether employees' online postings were protected under the NLRA. A review of NLRB activities in 2011 provides useful guidance to employers attempting to ensure their social media policies appropriately balance employee rights and company interests.
1. Prohibitions on employee discussions about the company should be narrowly tailored
The majority of allegations before the General Counsel assert that an employer's rule or policy restricts discussions permitted by the NLRA. In Lutheran Heritage Village-Livonia, the NLRB outlined a two-step approach to determine whether an employer's policy violates the NLRA. First, if the policy explicitly restricts protected activity, it is unlawful. Second, even if the policy does not explicitly restrict protected activity, it still is unlawful if: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the policy is applied to restrict the exercise of Section 7 rights. The General Counsel applies this same analysis to determine the validity of social media policies.
Based on the General Counsel's August 2011 report concerning social media charges, the following restrictions on employee use of social media are likely to be considered overbroad:
· Prohibiting employees from making disparaging, discriminatory, or defamatory comments when discussing the company or the employee's superiors, co-workers, and/or competitors.
· Prohibiting gossip and discussion regarding company business and/or its employees.
· Prohibiting employees from using any social media that may violate, compromise or disregard the rights and reasonable expectations of privacy or confidentiality of any person or entity.
· Prohibiting any communication or post that constitutes embarrassment, harassment or defamation of the employer, its employees, officer board member, representative or staff member.
· Prohibiting the use of language or action that is inappropriate or of a general offensive nature, and rude or discourteous behavior to a client or co-worker.
· Prohibiting employees from using the company name, address, or other information on their personal profiles.
The General Counsel reasoned that these policies utilized broad terms that would commonly encompass protected activity, did not define the conduct sought to be prohibited and did not contain any language that would exclude concerted activity.
2. Include a disclaimer
The General Counsel has signaled that including limiting language in social media policies can help ensure employees do not misconstrue the policy to limit Section 7 rights. Thus, many of the provisions above likely would not violate the NLRA if the policy contained a disclaimer which explicitly informed employees that the policy will not be construed or applied in a manner that improperly interferes with their right to discuss terms and conditions of employment.
The General Counsel has expressed a preference for disclaimers in everyday language such as "nothing will keep employees from talking with each other about terms and conditions of employment" and discounted those that state "unless otherwise protected by law" or "nothing herein shall interfere with Section 7 rights."
A disclaimer, however, does not guarantee an employer's policy will pass NLRB scrutiny. In Jurys Boston Hotel, the NLRB set aside the results of an election decertifying a union because the employee handbook contained overbroad rules prohibiting employee solicitation, distribution, loitering, and the wearing of buttons and insignia. In that case, the handbook had a general NLRA disclaimer. In addition, the employer clarified during the election campaign that the rules did not apply to protected concerted activity and, in fact, had not enforced the rules against any employees.
3. Be specific and provide examples
The General Counsel is more likely to uphold social media policies that clearly identify prohibited subjects and provide definitions, guidance, and/or examples.
In one case, the General Counsel alleged that several provisions of an employer's social media policy were overbroad, including a provision which prohibited employees broadly from revealing confidential and proprietary information about the employer or engaging in inappropriate discussions about the company, management and/or co-workers. The General Counsel reasoned that the reference to "inappropriate discussions" about the company was too broad without specific examples and would commonly apply to protected criticism of the employer's labor practices, treatment of employees, and terms and conditions of employment.
In another case, the General Counsel found that a prohibition on posting anything employees would not want their manager or supervisor to see or that would put their job in jeopardy was unlawful. The General Counsel noted, "neither the handbook nor its online social networking policy section provided any definition or guidance as to what communications the Employer was referring to that would put employees' jobs in jeopardy, or that the Employer would consider inappropriate or sensitive. Absent such limitations or examples of what was covered, the rules would reasonably be interpreted as prohibiting the employees' right to discuss wages and other terms and conditions of employment."
In contrast, in Sears Holdings (Roebucks), the General Counsel reviewed a social media policy adopted in the context of a union organizing campaign that utilized various forms of online media, including Facebook, MySpace, and an e-mail listserv hosted by Yahoo. The employer's policy stated "[I]n order to ensure that the Company and its associates adhere to their ethical and legal obligations, associates are required to comply with the Company's Social Media Policy. The intent of this policy is not to restrict the flow of useful and appropriate information, but to minimize the risk to the Company and its associates." The policy also had a list of "prohibited subjects" that included "disparagement of company's or competitor's products, services, executive leadership, employees, strategy, and business prospects." The list also included confidential information, explicit sexual references, illegal drugs, and disparagement of any race, religion, gender, sexual orientation, disability, or national origin, among other things. While the General Counsel noted that a statement prohibiting employees from disparaging senior management could chill exercise of Section 7 rights, it determined that the policy as a whole provided sufficient context to preclude a reasonable employee from reading the policy as a limitation on Section 7 conduct.
In another case, the General Counsel upheld a policy which provided that "no employee could ever be pressured to 'friend' or otherwise connect with a coworker via social media." The General Counsel reasoned that this policy was "sufficiently specific," "clearly applied only to harassing conduct," and could not be read to prohibit employees from friending for purposes of engaging in activity protected under the NLRA.
These cases suggest that, in addition to providing specific examples, the employer's policy should emphasize the legitimate purpose it seeks to advance, such as protecting the employer's proprietary information or preventing harassment and discrimination in the workplace.
4. A blanket prohibition on company pictures is a red flag
Employers interested in protecting their company name and logo should beware of blanket prohibitions on employee pictures of the company, its name or trademarks. In several cases, the General Counsel alleged that a policy prohibiting all pictures of the company or its employees violated the NLRA. For example, in American Medical Response of Connecticut, the General Counsel alleged that the employer's blogging and internet posting policy unlawfully prohibited employees from posting pictures of themselves in any media which depicted the company in any way (i.e., a company uniform, corporate logo) without authorization. The General Counsel reasoned that this statement could prohibit an employee from posting a picture of employees carrying a picket sign depicting the company's name or from wearing a t-shirt portraying the company's logo in connection with a protest involving terms and conditions of employment.
The General Counsel also alleged similar provisions in a supermarket chain's social media policy ran afoul of the NLRA. Among other things, the employer's policy precluded employees from revealing (including through the use of photographs), personal information regarding coworkers, company clients, partners, or customers without their consent and precluded the use of the employer's logo and photographs of the employer's store, brand, or product, without written authorization.
5. Employers can reasonably restrict employee contacts with the media
While employees have the right to speak to reporters about wages and other terms and conditions of employment, employers can impose reasonable restrictions on employee contact with the media to ensure a consistent, controlled company message. For example, the General Counsel upheld an employer's media relations policy that directed employees to respond to all media inquiries by replying that they were not authorized to speak for the employer or did not have the information sought; required employees to maintain confidentiality about sensitive information; and emphasized that it was imperative that one person speak for the employer to deliver an appropriate message and to avoid giving misinformation. The General Counsel concluded the policy could not reasonably be interpreted to prohibit employees from speaking on their own behalf with reporters.
In contrast, in Sodexo, the General Counsel determined that a media relations policy that barred employee statements to the media was unlawful.
6. Determine whether the activity is "concerted"
Before taking any disciplinary action against an employee for social media posts, employers should consider whether the employee was engaged in protected concerted activity under the NLRA. The General Counsel has indicated that the following activities are "concerted":
· Two or more employees engage in a discussion or action pertaining to their terms and conditions of employment.
· One employee acts or speaks about terms and conditions of employment for other employees or acts on the authority of other employees.
· An employee discusses terms and conditions of employment with other employees or speaks to management in front of other employees.
· An employee posts on Facebook/Twitter with the intention of generating or initiating group action (i.e., create a workplace "flash mob,") or presents a grievance to management.
· An employee posts on Facebook/Twitter and (i) other employees comment on the posting or (ii) the employee discusses the posting with co-workers.
· An employee's statement or action conveying a complaint against or about co-workers – even if not directed to management.
In Hispanics United of Buffalo, Inc. -- the first NLRB Administrative Law Judge (ALJ) decision involving a social media claim -- the ALJ found that the employer unlawfully discharged five employees because they were engaged in protected concerted activity. There, an employee used her Facebook page to criticize her co-workers for not doing enough to help the organization's clients. The initial post generated responses from five co-workers, who defended their job performance and criticized their working conditions. The employer terminated all five employees for "harassing and bullying conduct" towards the first employee. The ALJ found that the employees' Facebook discussion was protected concerted activity because it involved a conversation among employees about their terms and conditions of employment, including their job performance and staffing levels.
7. Individual gripes are not protected
In contrast to Hispanics United, an employee's posts that are solely an expression of frustration over an individual dispute are not concerted and thus not protected.
In Rural Metro, the General Counsel determined an employee was lawfully discharged for making a post to the Facebook "wall" of a U.S. Senator. While the employee's post discussed the alleged low wages paid by her employer and other allegedly poor working conditions, the employee did not discuss her Facebook comments with other employees prior to or immediately after posting them. There also was no evidence that employees had met or organized any group action to raise wage issues with the employer.
Likewise, in JT's Porch Saloon & Eatery, Ltd., the General Counsel determined a bartender was lawfully terminated for a Facebook post to a relative in which he referred to his customers as "rednecks" and said he hoped they choked on glass. When asked about his night at work, the employee complained that he hadn't received a raise in five years and that he was doing waitress work without receiving tips. While the employee had a history of discussing the employer's tipping policy with co-workers, the General Counsel noted that he did not discuss his Facebook posting with any employees; there had been no meetings or any attempt to initiate group action; and no co-workers responded to his post.
In Wal-Mart, the General Counsel determined an employee was lawfully disciplined after a co-worker provided management with a copy of an employee's profane comments on Facebook critical of local store management. The General Counsel deemed the employee's comments unprotected as they were more akin to "mere griping" and noted that his co-workers' comments on the employee's Facebook page did not indicate they "viewed the comments in any other way."
8. Posts unrelated to terms and conditions of employment are not protected
To be protected, the employee's complaint must relate to the terms and conditions of employment. While the NLRB has broadly construed complaints to meet this criteria, in several cases, the General Counsel or ALJ sided with the employer.
In Karl Knauz Motors, Inc., an Administrative Law Judge determined that an employee was lawfully discharged from his job as a car salesman after posting photographs and comments about an accident at the employer's dealership across the street. The General Counsel had alleged that the employee's discharge was sparked by complaints about the "pedestrian" quality of the food served at a sales event. The General Counsel's complaint characterized this latter posting as being protected concerted activity as it related to concerns about the employer's handling of an event which could impact the earnings of salespeople. While the ALJ found that the posting of the complaints about the food was protected activity, he nonetheless found the discharge was related solely to the posted picture of the car accident, and therefore was lawful.
In Monmouth Ocean Hospital Services Corp., the General Counsel determined the employer had not violated the Act by disciplining employees based on Facebook posts or by reporting those posts to state agencies. There, the employees' Facebook posts suggested that as health care workers in an acute care facility they might "withhold care if they were personally offended by the patients." The General Counsel concluded that the comments did not involve Section 7 concerns.
In Wal-Mart Distribution Center 6018, the General Counsel determined an employee was lawfully demoted for the contents in his Facebook account. This employee engaged in a dialogue with a co-worker on his Facebook account regarding recent earthquakes near his place of employment. His statements included his desire for the building to collapse while certain members of management were inside the building. The General Counsel concluded the latter Facebook comments lost the protection of the Act as the statements could reasonably be considered to be disloyal and unrelated to working conditions.
9. Proceed cautiously when it comes to disparaging remarks
Employer policies prohibiting disparagement of the company or executives are also at issue in many cases. Employers should proceed cautiously when it comes to disciplining employees for posting disparaging comments online.
In American Medical Response of Connecticut Inc., the General Counsel charged AMR with unlawfully terminating an employee for posting disparaging comments about her supervisor. The General Counsel's complaint also focused on AMR's "Blogging and Internet Posting Policy," which prohibited employees from, among other issues, "making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors." The General Counsel alleged the employee was engaged in protective activity because the employee discussed supervisory actions with co-workers on Facebook. Further, the General Counsel found that the employee's reference to her supervisor as a "scumbag" was not so opprobrious as to lose the protection of the Act. He noted that the name calling was not accompanied by any verbal or physical threat; that the Facebook posting occurred outside the workplace and did not interrupt any employee's work; and that the NLRB has protected "more egregious name calling" (i.e., "liar", "bitch", and the "F" word).
10. Beware of protected activity
Assuming an employee is engaged in concerted activity, the General Counsel must then determine whether the activity is "protected." The General Counsel has considered the following general criteria in making this determination:
· Employee statements are not protected if profane or vulgar, although words such as "scumbag," "liar," "bitch," a _ _ hole or the "F" word may not be sufficiently profane or vulgar to cause a statement to be unprotected, depending on the circumstances.
· A statement is not protected if it threatens violence.
· A statement is not protected if it is an illegal statement, such as being defamatory (as contrasted to merely untruthful) or constituting illegal discrimination or harassment.
· A statement is not protected if it is maliciously or recklessly false.
· A statement is not protected if it is made with a clear intent to harm the company.
· A concerted statement/action made outside the workplace or on non-work time is more likely to be protected.
· Statements that do not interrupt work or the company's operations or undermine supervisory authority are likely protected.
· Statements related to an ongoing labor dispute or provoked by employer unfair labor practices are likely protected.
Conclusion
Throughout 2011, the General Counsel pursued complaints against employers for what he considered to be overbroad policies restricting employee communications and unlawful terminations based on employee social media posts. In most cases, the General Counsel relied on prior NLRB precedent, including the definition of "protected concerted activity," to address social networking policies and activities. On January 24, 2012, the General Counsel issued a second report discussing fourteen additional social media cases and reiterating many of the key points made in the earlier survey and discussed above. Employers should continue to monitor developments in this area and keep in mind that the cases are extremely fact specific. As a result, employers should rely on attorneys well-versed in NLRB precedent when drafting social media policies or considering discipline or discharge of employees based on misuse of social media.
Source: Baker & McKenzie - GAI
For more information or to contact Baker & McKenzie, please click here.
backGLOBALtalk July, 2012
USA: Attention all employers (unionized or not!) – Does your social media policy violate the NLRA? Top 10 lessons from the NLRB in 2011
With the explosion of social media use in the workplace, the National Labor Relations Board (NLRB) is actively scrutinizing employer social media policies and considering to what extent employees' online postings fall under National Labor Relations Act protection. Section 7 of the NLRA protects employees (in both unionized and non-unionized workplaces) who engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Employers are prohibited from taking any action that might "chill" an employee's ability to engage in protected concerted activities, even if only as few as two employees are involved.
In 2011, the NLRB's Acting General Counsel – who decides which unfair labor practice charges to prosecute against employers – released a report summarizing many of the social media cases he (or his staff in the Division of Advice) have addressed over the last year. NLRB Administrative Law Judges also issued the first two decisions analyzing whether employees' online postings were protected under the NLRA. A review of NLRB activities in 2011 provides useful guidance to employers attempting to ensure their social media policies appropriately balance employee rights and company interests.
1. Prohibitions on employee discussions about the company should be narrowly tailored
The majority of allegations before the General Counsel assert that an employer's rule or policy restricts discussions permitted by the NLRA. In Lutheran Heritage Village-Livonia, the NLRB outlined a two-step approach to determine whether an employer's policy violates the NLRA. First, if the policy explicitly restricts protected activity, it is unlawful. Second, even if the policy does not explicitly restrict protected activity, it still is unlawful if: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the policy is applied to restrict the exercise of Section 7 rights. The General Counsel applies this same analysis to determine the validity of social media policies.
Based on the General Counsel's August 2011 report concerning social media charges, the following restrictions on employee use of social media are likely to be considered overbroad:
· Prohibiting employees from making disparaging, discriminatory, or defamatory comments when discussing the company or the employee's superiors, co-workers, and/or competitors.
· Prohibiting gossip and discussion regarding company business and/or its employees.
· Prohibiting employees from using any social media that may violate, compromise or disregard the rights and reasonable expectations of privacy or confidentiality of any person or entity.
· Prohibiting any communication or post that constitutes embarrassment, harassment or defamation of the employer, its employees, officer board member, representative or staff member.
· Prohibiting the use of language or action that is inappropriate or of a general offensive nature, and rude or discourteous behavior to a client or co-worker.
· Prohibiting employees from using the company name, address, or other information on their personal profiles.
The General Counsel reasoned that these policies utilized broad terms that would commonly encompass protected activity, did not define the conduct sought to be prohibited and did not contain any language that would exclude concerted activity.
2. Include a disclaimer
The General Counsel has signaled that including limiting language in social media policies can help ensure employees do not misconstrue the policy to limit Section 7 rights. Thus, many of the provisions above likely would not violate the NLRA if the policy contained a disclaimer which explicitly informed employees that the policy will not be construed or applied in a manner that improperly interferes with their right to discuss terms and conditions of employment.
The General Counsel has expressed a preference for disclaimers in everyday language such as "nothing will keep employees from talking with each other about terms and conditions of employment" and discounted those that state "unless otherwise protected by law" or "nothing herein shall interfere with Section 7 rights."
A disclaimer, however, does not guarantee an employer's policy will pass NLRB scrutiny. In Jurys Boston Hotel, the NLRB set aside the results of an election decertifying a union because the employee handbook contained overbroad rules prohibiting employee solicitation, distribution, loitering, and the wearing of buttons and insignia. In that case, the handbook had a general NLRA disclaimer. In addition, the employer clarified during the election campaign that the rules did not apply to protected concerted activity and, in fact, had not enforced the rules against any employees.
3. Be specific and provide examples
The General Counsel is more likely to uphold social media policies that clearly identify prohibited subjects and provide definitions, guidance, and/or examples.
In one case, the General Counsel alleged that several provisions of an employer's social media policy were overbroad, including a provision which prohibited employees broadly from revealing confidential and proprietary information about the employer or engaging in inappropriate discussions about the company, management and/or co-workers. The General Counsel reasoned that the reference to "inappropriate discussions" about the company was too broad without specific examples and would commonly apply to protected criticism of the employer's labor practices, treatment of employees, and terms and conditions of employment.
In another case, the General Counsel found that a prohibition on posting anything employees would not want their manager or supervisor to see or that would put their job in jeopardy was unlawful. The General Counsel noted, "neither the handbook nor its online social networking policy section provided any definition or guidance as to what communications the Employer was referring to that would put employees' jobs in jeopardy, or that the Employer would consider inappropriate or sensitive. Absent such limitations or examples of what was covered, the rules would reasonably be interpreted as prohibiting the employees' right to discuss wages and other terms and conditions of employment."
In contrast, in Sears Holdings (Roebucks), the General Counsel reviewed a social media policy adopted in the context of a union organizing campaign that utilized various forms of online media, including Facebook, MySpace, and an e-mail listserv hosted by Yahoo. The employer's policy stated "[I]n order to ensure that the Company and its associates adhere to their ethical and legal obligations, associates are required to comply with the Company's Social Media Policy. The intent of this policy is not to restrict the flow of useful and appropriate information, but to minimize the risk to the Company and its associates." The policy also had a list of "prohibited subjects" that included "disparagement of company's or competitor's products, services, executive leadership, employees, strategy, and business prospects." The list also included confidential information, explicit sexual references, illegal drugs, and disparagement of any race, religion, gender, sexual orientation, disability, or national origin, among other things. While the General Counsel noted that a statement prohibiting employees from disparaging senior management could chill exercise of Section 7 rights, it determined that the policy as a whole provided sufficient context to preclude a reasonable employee from reading the policy as a limitation on Section 7 conduct.
In another case, the General Counsel upheld a policy which provided that "no employee could ever be pressured to 'friend' or otherwise connect with a coworker via social media." The General Counsel reasoned that this policy was "sufficiently specific," "clearly applied only to harassing conduct," and could not be read to prohibit employees from friending for purposes of engaging in activity protected under the NLRA.
These cases suggest that, in addition to providing specific examples, the employer's policy should emphasize the legitimate purpose it seeks to advance, such as protecting the employer's proprietary information or preventing harassment and discrimination in the workplace.
4. A blanket prohibition on company pictures is a red flag
Employers interested in protecting their company name and logo should beware of blanket prohibitions on employee pictures of the company, its name or trademarks. In several cases, the General Counsel alleged that a policy prohibiting all pictures of the company or its employees violated the NLRA. For example, in American Medical Response of Connecticut, the General Counsel alleged that the employer's blogging and internet posting policy unlawfully prohibited employees from posting pictures of themselves in any media which depicted the company in any way (i.e., a company uniform, corporate logo) without authorization. The General Counsel reasoned that this statement could prohibit an employee from posting a picture of employees carrying a picket sign depicting the company's name or from wearing a t-shirt portraying the company's logo in connection with a protest involving terms and conditions of employment.
The General Counsel also alleged similar provisions in a supermarket chain's social media policy ran afoul of the NLRA. Among other things, the employer's policy precluded employees from revealing (including through the use of photographs), personal information regarding coworkers, company clients, partners, or customers without their consent and precluded the use of the employer's logo and photographs of the employer's store, brand, or product, without written authorization.
5. Employers can reasonably restrict employee contacts with the media
While employees have the right to speak to reporters about wages and other terms and conditions of employment, employers can impose reasonable restrictions on employee contact with the media to ensure a consistent, controlled company message. For example, the General Counsel upheld an employer's media relations policy that directed employees to respond to all media inquiries by replying that they were not authorized to speak for the employer or did not have the information sought; required employees to maintain confidentiality about sensitive information; and emphasized that it was imperative that one person speak for the employer to deliver an appropriate message and to avoid giving misinformation. The General Counsel concluded the policy could not reasonably be interpreted to prohibit employees from speaking on their own behalf with reporters.
In contrast, in Sodexo, the General Counsel determined that a media relations policy that barred employee statements to the media was unlawful.
6. Determine whether the activity is "concerted"
Before taking any disciplinary action against an employee for social media posts, employers should consider whether the employee was engaged in protected concerted activity under the NLRA. The General Counsel has indicated that the following activities are "concerted":
· Two or more employees engage in a discussion or action pertaining to their terms and conditions of employment.
· One employee acts or speaks about terms and conditions of employment for other employees or acts on the authority of other employees.
· An employee discusses terms and conditions of employment with other employees or speaks to management in front of other employees.
· An employee posts on Facebook/Twitter with the intention of generating or initiating group action (i.e., create a workplace "flash mob,") or presents a grievance to management.
· An employee posts on Facebook/Twitter and (i) other employees comment on the posting or (ii) the employee discusses the posting with co-workers.
· An employee's statement or action conveying a complaint against or about co-workers – even if not directed to management.
In Hispanics United of Buffalo, Inc. -- the first NLRB Administrative Law Judge (ALJ) decision involving a social media claim -- the ALJ found that the employer unlawfully discharged five employees because they were engaged in protected concerted activity. There, an employee used her Facebook page to criticize her co-workers for not doing enough to help the organization's clients. The initial post generated responses from five co-workers, who defended their job performance and criticized their working conditions. The employer terminated all five employees for "harassing and bullying conduct" towards the first employee. The ALJ found that the employees' Facebook discussion was protected concerted activity because it involved a conversation among employees about their terms and conditions of employment, including their job performance and staffing levels.
7. Individual gripes are not protected
In contrast to Hispanics United, an employee's posts that are solely an expression of frustration over an individual dispute are not concerted and thus not protected.
In Rural Metro, the General Counsel determined an employee was lawfully discharged for making a post to the Facebook "wall" of a U.S. Senator. While the employee's post discussed the alleged low wages paid by her employer and other allegedly poor working conditions, the employee did not discuss her Facebook comments with other employees prior to or immediately after posting them. There also was no evidence that employees had met or organized any group action to raise wage issues with the employer.
Likewise, in JT's Porch Saloon & Eatery, Ltd., the General Counsel determined a bartender was lawfully terminated for a Facebook post to a relative in which he referred to his customers as "rednecks" and said he hoped they choked on glass. When asked about his night at work, the employee complained that he hadn't received a raise in five years and that he was doing waitress work without receiving tips. While the employee had a history of discussing the employer's tipping policy with co-workers, the General Counsel noted that he did not discuss his Facebook posting with any employees; there had been no meetings or any attempt to initiate group action; and no co-workers responded to his post.
In Wal-Mart, the General Counsel determined an employee was lawfully disciplined after a co-worker provided management with a copy of an employee's profane comments on Facebook critical of local store management. The General Counsel deemed the employee's comments unprotected as they were more akin to "mere griping" and noted that his co-workers' comments on the employee's Facebook page did not indicate they "viewed the comments in any other way."
8. Posts unrelated to terms and conditions of employment are not protected
To be protected, the employee's complaint must relate to the terms and conditions of employment. While the NLRB has broadly construed complaints to meet this criteria, in several cases, the General Counsel or ALJ sided with the employer.
In Karl Knauz Motors, Inc., an Administrative Law Judge determined that an employee was lawfully discharged from his job as a car salesman after posting photographs and comments about an accident at the employer's dealership across the street. The General Counsel had alleged that the employee's discharge was sparked by complaints about the "pedestrian" quality of the food served at a sales event. The General Counsel's complaint characterized this latter posting as being protected concerted activity as it related to concerns about the employer's handling of an event which could impact the earnings of salespeople. While the ALJ found that the posting of the complaints about the food was protected activity, he nonetheless found the discharge was related solely to the posted picture of the car accident, and therefore was lawful.
In Monmouth Ocean Hospital Services Corp., the General Counsel determined the employer had not violated the Act by disciplining employees based on Facebook posts or by reporting those posts to state agencies. There, the employees' Facebook posts suggested that as health care workers in an acute care facility they might "withhold care if they were personally offended by the patients." The General Counsel concluded that the comments did not involve Section 7 concerns.
In Wal-Mart Distribution Center 6018, the General Counsel determined an employee was lawfully demoted for the contents in his Facebook account. This employee engaged in a dialogue with a co-worker on his Facebook account regarding recent earthquakes near his place of employment. His statements included his desire for the building to collapse while certain members of management were inside the building. The General Counsel concluded the latter Facebook comments lost the protection of the Act as the statements could reasonably be considered to be disloyal and unrelated to working conditions.
9. Proceed cautiously when it comes to disparaging remarks
Employer policies prohibiting disparagement of the company or executives are also at issue in many cases. Employers should proceed cautiously when it comes to disciplining employees for posting disparaging comments online.
In American Medical Response of Connecticut Inc., the General Counsel charged AMR with unlawfully terminating an employee for posting disparaging comments about her supervisor. The General Counsel's complaint also focused on AMR's "Blogging and Internet Posting Policy," which prohibited employees from, among other issues, "making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors." The General Counsel alleged the employee was engaged in protective activity because the employee discussed supervisory actions with co-workers on Facebook. Further, the General Counsel found that the employee's reference to her supervisor as a "scumbag" was not so opprobrious as to lose the protection of the Act. He noted that the name calling was not accompanied by any verbal or physical threat; that the Facebook posting occurred outside the workplace and did not interrupt any employee's work; and that the NLRB has protected "more egregious name calling" (i.e., "liar", "bitch", and the "F" word).
10. Beware of protected activity
Assuming an employee is engaged in concerted activity, the General Counsel must then determine whether the activity is "protected." The General Counsel has considered the following general criteria in making this determination:
· Employee statements are not protected if profane or vulgar, although words such as "scumbag," "liar," "bitch," a _ _ hole or the "F" word may not be sufficiently profane or vulgar to cause a statement to be unprotected, depending on the circumstances.
· A statement is not protected if it threatens violence.
· A statement is not protected if it is an illegal statement, such as being defamatory (as contrasted to merely untruthful) or constituting illegal discrimination or harassment.
· A statement is not protected if it is maliciously or recklessly false.
· A statement is not protected if it is made with a clear intent to harm the company.
· A concerted statement/action made outside the workplace or on non-work time is more likely to be protected.
· Statements that do not interrupt work or the company's operations or undermine supervisory authority are likely protected.
· Statements related to an ongoing labor dispute or provoked by employer unfair labor practices are likely protected.
Conclusion
Throughout 2011, the General Counsel pursued complaints against employers for what he considered to be overbroad policies restricting employee communications and unlawful terminations based on employee social media posts. In most cases, the General Counsel relied on prior NLRB precedent, including the definition of "protected concerted activity," to address social networking policies and activities. On January 24, 2012, the General Counsel issued a second report discussing fourteen additional social media cases and reiterating many of the key points made in the earlier survey and discussed above. Employers should continue to monitor developments in this area and keep in mind that the cases are extremely fact specific. As a result, employers should rely on attorneys well-versed in NLRB precedent when drafting social media policies or considering discipline or discharge of employees based on misuse of social media.
Source: Baker & McKenzie - GAI
For more information or to contact Baker & McKenzie, please click here.
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China – New Government Policy Goal: More Collective Bargaining in the Private Sector
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Negotiating a Russian Deal
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Spain Passes Major Labour Law Amendments that Curtail the Leverage of Works Councils and Collective Bargaining Agreements
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USA: Employees vs. Independent Contractors: A Benefits Perspective
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Going, Going, Gone: No More New H-1B Visa Petitions Accepted
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Canada Business Immigration Manual
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Potential Corruption Risks in South America
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Viva Brazil! Legal Pitfalls for U.S. Multinationals Seconding Expats to Brazil
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Asian Firms Offer More Variable Pay than Western Firms
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Comparative Employment Risks in the BRIC Countries
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Asia: When is a mooncake a bribe?
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Can German wage agreements help other eurozone countries?
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USA: Attention all employers (unionized or not!) – Does your social media policy violate the NLRA? Top 10 lessons from the NLRB in 2011
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USA-CANADA: Respect the Border: Best Practices for Successful Cross-Border Moves
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Asian education systems lacking “practice orientation”
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Changes Affecting the U.S. Visa Application Process in Japan
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Thailand: Corruption, red tape holding back growth
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Making The Move To: Shanghai
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Mexico Bribery: Cost of Doing Business?
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Argentina - Employment & Labour
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Vietnam: Guidelines on the Recruitment of and Management Over Expatriates
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Mexico Employment Law – Employee Profit Sharing
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Flexible Benefits: An Effective Prescription in China
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Europe's Shrinking Labor Force
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The Italian way to flex-security: The Monti Reform of Italian employment law
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Hungary's New Labour Code: Significant changes that provide more flexibility for employers
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Is U.S. Immigration Policy Stifling Tech Innovation? What’s Really Behind the Tech Talent Shortage?
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