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Social Media and the National Labor Relations Board

Delaware Law Weekly
November 29, 2011, Wendy K. Voss, Michael B. Rush

The National Labor Relations Board (“NLRB”) recently has turned its enforcement efforts toward the expanding world of social media. Employers’ discipline or termination of employees for their social media posts have caused the NLRB to investigate whether the actions violated the National Labor Relations Act (the “Act”) and whether the employers’ social media policies are overbroad. Developments in this area should be of particular interest to employers – even those without unions – as the emerging rules apply to all employers that may be subject to the Act.

Employee Discipline Stemming From Social Media Use

Most cases addressed by the NLRB involve situations in which an employee was disciplined after posting on a social media site. The threshold issues are whether the employee engaged in “concerted activity,” and whether that activity was protected under the Act. Concerted activity exists when an employee acts with the authority of other employees, when the employee seeks to initiate, induce or prepare for group action, or when the employee brings group complaints to the attention of management. Wal-Mart, 17-CA-25030 (2011). In general, employee activity is protected if it relates to the terms and conditions of employment. Hispanics United of Buffalo, 3-CA-27872 (2011) (“Hispanics United”).

In the past few years, the NLRB has examined over one hundred cases involving social media. In one recent case, Karl Knauz Motors, Inc. d/b/a Knauz MNW, 13-CA 46452 (2011), the NLRB issued a complaint against a car dealership, alleging that a salesperson was wrongfully terminated because of his Facebook posts. The employee had criticized the employer’s choice of food at a sales, which he thought would affect his ability to sell cars. The administrative law judge ruled that the posts constituted protected, concerted activity. However, the judge also concluded that the employee was terminated for other posts regarding a car accident involving another salesperson. As these other posts did not constitute protected activity, the dealership did not violate the Act by firing the employee.

Conversely, in Hispanics United, an administrative law judge found that the employer, Hispanics United, violated the Act when it terminated five employees for posts made on Facebook. The posts at issue were in response to a post by a co-worker advising them that a fellow employee felt the employees did not do enough for their clients. The responding employees defended their performance and criticized the complaining employee.

In the ensuing labor dispute regarding whether the terminations constituted an unfair labor practice, the judge ruled that the Facebook communications were protected under the Act. Significantly, the judge found that the terminated employees had reason to believe the complaining employee would go to management with her accusations about their job performance. The judge found that the Facebook discussion represented the “first step towards taking group action to defend themselves,” noting that “the activities of a single employee in enlisting the support of fellow employees in mutual aid and protection is as much concerted activity as is ordinary group activity.” He concluded that employees have a right to discuss matters affecting their employment among themselves, and the explicit or implicit criticism of their work by a co-worker is subject matter protected by the Act.

A key issue in these cases is who, if anyone, was the intended recipient or responded to the posts. InJT’s Porch Saloon & Eatery, Ltd., 13-CA-46689 (2011) (“JT’s Porch”), the NLRB issued an Advice Memorandum finding no violation because there was no evidence that the employee’s Facebook post was directed to or discussed by co-workers. In that case, a bartender’s stepsister asked him on Facebook how his night had gone. He responded by complaining about his employer’s tip policy and the fact that he had not received a raise in five years. He then called the employer’s customers “rednecks” and wrote that he hoped they choked on glass when they drove home drunk. The bartender was fired when his employer learned of the post. The NLRB concluded that there was no concerted activity. As opposed to the “conversation” between employees in Hispanics United, the employee in JT’s Saloon was merely responding to a question from his stepsister, a non-employee.

Another key issue will be the subject matter of the posts. In Martin House, 34-CA-12950 (2011), the NLRB issued an Advice Memorandum concluding that the employer, a nonprofit facility for mentally disabled individuals, did not violate the Act when it terminated an employee who made numerous posts making fun of patients at the facility. The NLRB concluded that the termination was not in violation of the Act because the posts did not mention any terms or conditions of employment. Moreover, as in JT’s Porch, the communications were not concerted activity because there was no involvement on the part of other employees.

Social Media Policies

When reviewing employers’ social media policies, the NLRB’s focus is on whether the policies are overbroad or impermissibly vague so as to chill employees in the exercise of their rights. In American Medical Response of Connecticut, Inc., 34-CA-12576 (2010), the NLRB issued an Advice Memorandum concluding that the employer’s social media policy was overbroad and in violation of the Act. One challenged provision of the policy prohibited employees from “posting pictures of themselves in any media…which depicts the Company in any way, including but not limited to [photos showing] a Company uniform, corporate logo, or ambulance.” The NLRB concluded this was overbroad because, theoretically, it would prohibit employees from posting a picture of themselves carrying picket signs that displayed the employer’s logo.

In another case, the NLRB concluded language in the employer’s social media policy was overbroad because it prohibited employees from talking about company business on social media accounts, posting anything that they would not want their manages to see, and posting inappropriate pictures or comments about the company. The NLRB said this language did not provide any clear guidance regarding what communications would be considered inappropriate, and could be interpreted so as to prohibit employees from discussing wages and other terms and conditions of employment. It was irrelevant to the NLRB’s finding whether, in fact, the policy had been interpreted in this fashion. Rather, the language of such policies, standing alone, may constitute an unfair labor practice.

The NLRB has taken various actions – including press releases and other communications available to the public – to warn employers to take care when drafting social media policies or considering whether the employer will discipline an employee for his or her social media use. Employers are cautioned to remain vigilant regarding the broad protections provided by the Act to employees who engage in concerted activity. 

Reprinted with permission from 11/19/2011 issue of the Delaware Law Weekly© 2011 ALM Media Properties LLC. Further duplication without permission is prohibited. All rights reserved.