Preston L. Pugh
THE NLRB and Social Media:
Familiar Legal Landscape in a New Frontier
Over the past several years, the use of social media has exploded. People are "logging on", "liking", "tweeting", and "blogging" more than ever before. Like many regulators, the National Labor Relations Board ("NLRB" or "the Board") has grappled with applying decades-long legal principles to employees' use of social media. This analysis becomes even more complicated as social media rapidly changes.
The NLRB's social media cases have generally fallen into two areas: (1) claims that employers retaliated against employees for statements made about their employers or working conditions; and (2) claims that an employer's social media policy violates the NLRA by "chilling" employees' exercise of their rights under the Act. Recent analyses of NLRB action provided by the U.S. Chamber of Commerce and the Board's Acting General Counsel as well as an administrative decision by an NLRB Administrative Law Judge ("ALJ") collectively show that the Board will seek to aggressively enforce the Act with respect to social media—regardless of whether the employees at issue are in a union, or not.
In one case, Hispanics United of Buffalo Inc., the NLRB held that a nonprofit social services provider unlawfully discharged five nonunion employees in response to their posts on Facebook. The Facebook comment thread began with a post from one employee that stated: "Lydia... a coworker feels that we don't help our clients enough at HUB I about had it! My fellow coworkers, how do you feel?" Four coworkers responded, among other things, by using offensive language and calling the employer's customers "lazy" and "unappreciative". One comment also stated "What the hell, we don't have a life as is. What else can we do?" The employer subsequently learned about these comments and fired all five employees for violating its zero-tolerance harassment policy. The employees filed charges with the NLRB, and upon review, the ALJ found the employees' comments were concerted activity, even though the employees were not trying to change their working conditions or report their concerns to the employer.
Similarly, in American Medical Response, the NLRB held that an employee's Facebook comments about her supervisor - including calling him a "scumbag" - were protected , despite the fact that the employee's comments were received by her coworkers. The Board reasoned that the comments were made during an online employee discussion of supervisory action, which drew supportive responses from her coworkers, and were not accompanied by any verbal or physical threats. The NLRB further found the comments protected because they were made outside the workplace, during nonworking time, and thus did not infringe upon the work environment.
The NLRB's aggressive enforcement of Section 8(a)(1) also extends to its review of employers' social media policies. For example, in the American Medical Response case, the NLRB concluded that an employer's policy violated the NLRA when it prohibited employees from posting pictures in any media that depicts a company's logo. The Board reasoned that the policy would prohibit an employee from posting a picture of the employee carrying a picket sign depicting the company's name. Also, policies that are overly broad and contain no limiting language to inform employees that the policy does not apply to protected Section 7 activity are also unlawful. In one case, the NLRB found that a policy prohibiting the use of language or action that was inappropriate or of a generally offensive nature, or rude or discourteous behavior to coworkers, without any such limiting language, was deemed overly restrictive. At least under the current administration, employers' social media policies cannot restrict employees from revealing what they otherwise are permitted to reveal, including information about wages and other terms and conditions of employment.
Yet, despite its aggressive enforcement of Section 8(a)(1), even the Board agrees that there are some limitations to what employees can say in social media. Thus, the NLRB has found that the use of social media will not be protected when an employee criticizes his or her employer with no indication that those concerns were addressed with any of the employee's coworkers. In Lee Enterprises, Inc., d/b/a Arizona Daily Star., for example, the NLRB held that an employee's discharge for writing inappropriate and offensive Twitter postings that did not relate to the terms and conditions of employment, or seek to involve other employees in issues related to employment, did not violate Section 8(a)(1). Similarly, if there is no evidence of employee meetings or any other attempt to discuss employee concerns as a group, it is much harder for an employee to establish a claim of protected concerted action. See JT's Porch Salon & Eatery Ltd.; see also Wal-Mart.
Employers evaluating the likelihood that their employees' social media activity will be deemed protected under the NLRA should examine the underlying nature of the information being conveyed. Postings using language and expressing sentiments about collective employee concerns over the terms and conditions of employment are likely to be deemed protected concerted activity by the NLRB. However, if the comments amount to an employee logging on to Facebook to air concerns about his or her employer, then the employer may discipline in accordance with its policies and procedures. Although social media may change the forum, the NLRB rules regarding content stay the same.