NLRB Issues Second Report Reviewing Social Media Enforcement Actions

On January 25, 2012 the National Labor Relations Board (“NLRB”) Office of the General Counsel released a report summarizing fourteen cases that were before the NLRB concerning the “protected and/or concerted nature of employees’ social media postings and the lawfulness of employers’ social media policies and rules” (“Report”). The Report followed up on an earlier report issued by the NLRB Office of the General Counsel on August 18, 2011 and reiterated two main principles set forth in that earlier report:

• Employer policies should not be so broad such that they prohibit, discourage or chill activity that is protected by Section 7 of the National Labor Relations Act (“NLRA”) (e.g., discussion of wages or working conditions). Specifically, the Report made clear that:
  • Specific examples of the type of conduct prohibited should be included in any social media policy (i.e., do not disclose “trade secrets”, as opposed to do not post “sensitive information” about the company).
  • The policy should carefully carve out and protect employee’s specific rights under NLRA; a general saving clause is insufficient.
  • The policy should not use vague terms like “appropriate” or “professional” without providing clear definitions for those terms.
    • Employee comments on social media networks generally are not protected if those comments are mere complaints about or general dissatisfaction with the job (e.g., “I hate my job!” or “My boss is mean!”). The comments will be protected if they are associated with an expression of shared concern, such as a dialogue about how bad the work environment is and what employees can do to fix it in response to a single employee’s wall post about the job.

    Summaries of each of the cases reviewed in the Report are as follows:

    1.       Employee Discussion on Facebook Can Be Protected Concerted Activity

    • The terminated employed had posted on Facebook about a self-proclaimed demotion that she thought was unfair and unwarranted based upon her performance. Several co-workers with whom she was also “friends” posted their support on Facebook, including comments discussing the employer’s dishonest and unfair practices. The employee was terminated 5 days after making her post for violating the employer’s rule prohibiting “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” The NLRB found that this policy was unlawful on the basis that it would “reasonably be construed to restrict Section 7 activity, such as statements that the Employer is, for example, not treating employees fairly or paying them sufficiently.” Further, the NLRB found that the employee’s initial post and the subsequent discussion that it generated fell within the definition of “concerted activity” since the discussion clearly centered on working conditions.

    2.   Broad Policies That Do Not Provide Examples or Clear Definitions Are Often  Found Invalid by the NLRB

    • An employer implemented a social media policy “restricting the use of the employer’s confidential and/or proprietary information provided that, in external social networking situations, employees should generally avoid identifying themselves as the employer’s employees, unless there was a legitimate business need to do so or when discuss terms and conditions of employment in an appropriate manner.” The policy did not define what “appropriate” or “inappropriate” meant under the policy and therefore employees could “reasonably interpret the rule to prohibit protected activity, including criticism of employer’s labor policies, treatment of employees and terms and conditions of employment."
    • A provision requiring “that social networking site communications be made in in an honest, professional, and appropriate manner, without defamatory or inflammatory comments regarding the employer and its subsidiaries, and their shareholders, officers, employees, customers, suppliers, contractors, and patients.” Without defining broad terms like “professional” and “appropriate” the provision could be construed to prohibit communications protected by NLRA.

    3.       Policies that Subjectively Infringe on NLRA Section 7 Rights Are Invalid

    • ·An employer discharged an employee for violation of a company policy that stated that “insubordination or other disrespectful conduct” and “inappropriate conversation” would be subject to disciplinary action. The NLRB found that this policy “would reasonably be construed by employees to preclude Section 7 activity.”
    • An employer’s social media policy “prohibits employees from using social media to engage in unprofessional communication that could negatively impact the employer’s reputation or interfere with the employer’s mission or unprofessional/inappropriate communication regarding members of the employer’s community.” Although the rule contained some clear examples of unprotected conduct (e.g. revealing trade secrets), it also contained examples that could reasonably be read to include protected conduct and, therefore, could “be construed to chill employees in the exercise of their Section 7 rights."

    4. Social Media Policies Inhibiting Free Communication Between Employees and Between Employees and Third Parties Are Generally Invalid
    

    The Report discussed the following overbroad provisions from a single social media policy:

    • A provision that prohibited employees from “disclosing or communicating information of a confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department” is unlawful because employees have a right to communicate such information to third parties.
    • A provision preventing use of the company’s name or service marks outside of the course of business without prior approval of the law department is unlawful because employees have a right to use their employer’s name or logo in conjunction with protected concerted activity, such as to communicate with fellow employees or the public about a labor dispute. 
    • A provision prohibiting employees from publishing “any representation about the company without prior approval by senior management and the law department” is unlawful because employees have a Section 7 right to make representations about their employer that are “part of and related to an ongoing labor dispute.” 
    • 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” is unlawful because the provision stifled employees’ ability to locate other employees, thus, inhibiting their ability to organize, a protected right under Section 7.
    • A provision “requiring employees to first discuss with their supervisor or manager any work-related concerns, and it provided that failure to comply could result in corrective action, up to and including termination” is unlawful because it inhibits the ability for employees to organize to discuss working conditions.

    5.       Social Media Policies that Are Adequately Tailored to Uphold Workplace Confidentiality and Discrimination Rules are Lawful

    • The policy originally prohibited discriminatory, defamatory, or harassing posts about specific employees, the work environment or work-related issues on social media sites. Broad terms like “defamatory” especially when applied to work-related issues could be construed to apply to protected activity. The amended policy prohibited “the use of social media to post or display comments about coworkers or supervisors or the employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.“ The amended policy, on the other hand, could not reasonably be construed to apply to protected activity as it provides a “list of plainly egregious conduct.”
    • The employer’s social media policy provided that “the employer could request employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws. [Further,] [i]t prohibited employees from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients, and it also prohibited employees from discussing in any form of social media “embargoed information,” such as launch and release dates and pending reorganizations.” In context, the prohibition applied only to communications that could impact security regulations or disclose proprietary information and, as such, was narrowly tailored and withstood scrutiny.

    The Report also provides updated guidance regarding the scope of “concerted activity” under Section 7:

    1.   Facebook Posts Can Only Be Considered Concerted Activity Where There Is Active Participation from Facebook “Friend” Co-Workers In the Discussion

    • The terminated employee (a truck driver) posted to Facebook criticizing the way that the business was run, including, that the company was ‘running off all the good drivers’. No other employees joined the discussion and the employee’s comments did not attempt to induce a group action. The NLRB further noted that there was no “unlawful surveillance” since the employee had invited his supervisor to be his “friend” on Facebook.
    • The terminated employee posted criticism of a supervisor on Facebook, including use of the phrase “setting it off”. The employer deemed the phrase to be threatening and inappropriate. The post was not concerted activity, because although the posts addressed terms and conditions of employment he did not intend to initiate or induce coworkers to engage in group action and no “friends” that were co-workers responded to his post. 

    2.   Social Media Postings That Are a Direct Result of Concerted Activity Are Protected

    •  The terminated employee, an individual to whom other employees confided in about on the job issues, posted about those shared concerns over the terms and conditions of employment. Co-worker responses to her posts contained suggestions for action by the group to change those conditions. Her termination was found to be unlawful because it was directly related to her “involvement in her co-workers’ work-related problems, including her discussions with fellow employees about the terms and conditions of employment.”
    • The terminated employee made various online (e.g. on local newspaper message boards) and Facebook posts about the employer’s poor management style, which allegedly included bullying, harassment and abuse of employees that had been ongoing for at least 3 years. Several co-workers posted messages of support on the terminated employee’s Facebook Page, e.g. “Thank you for speaking for us who do not dare.” Since the posts were part of an ongoing labor dispute related to treatment of employees, and the statements were a “logical outgrowth of other employees’ concerns or were made with or on the authority of other employees”, it was clear that they contained unfair labor practice charges, which are protected by Section 7. The NLRB further found that the comments were not unprotected disparagement or defamation.

    3. Comments to Facebook Postings Have Equal Protection and Privilege As Original Postings

    • The terminated employee posted his frustration on Facebook that another individual was promoted over him and that the promotions were not aligned with the performance. Responses to his post included suggestions that all the good employees should quit.  These posts demonstrated “shared concerns about the terms and conditions of employment” and were therefore “concerted activity for mutual aid and protection” and protected activity under Section 7.
    • The terminated employee posted on a co-worker’s Facebook wall about his supervisor’s bad attitude and poor management style, and the co-worker agreed responding that she wished she could work elsewhere.  The employees had previously complained about the supervisor to a higher up. Protest of supervisory action is protected under Section 7 and NLRB found that the discussion constituted “concerted activity for mutual aid and protection.” The NLRB further found that the comments were not unprotected disparagement or defamation.

    As we have previously noted in prior posts about the NLRB’s social media enforcement actions, employers should carefully review and adjust their social media policies and practices in light of the NLRB’s guidance and enforcement. Social media policies must be narrowly tailored so as not to infringe upon employees’ Section 7 rights.