Your Social Media Policies May Violate the NLRA

Using Social Media

As this case illustrates, employer policies and practices on employees' use of social media continues to be a hot topic for the National Labor Relations Board. Not only did the Board release a report concerning its recent social media decisions in August 2011, but in February ' a mere six months later ' the Board issued a second report on the issue. The August 2011 report primarily illustrated that the Board has recently considered a variety of social media-related cases and reached mixed conclusions as to the lawfulness of employers' actions. In its new report, the Board provides additional guidance for crafting social media policies and enforcing discipline on employees for their use of social media in a manner that does not violate the NLRA.

The Protections Granted by The NLRA

Section 8(a)(1) of the NLRA provides that it is an unfair labor practice to interfere with, restrain or coerce employees in the exercise of the rights guaranteed under Section 7 of the Act. 29 U.S.C. ' 158 (8)(1). “An employer violates Section 8(a)(1) through the maintenance of a work rule if that rule 'would unreasonably tend to chill employees in the exercise of their Section 7 rights.'” Report of Acting Gen. Counsel Concerning Social Media Cases, OM 12-31. Under Section 7, “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. ' 157 (emphasis added).

New Guidance on Crafting Social Media Policies

Although the Board in its most recent report discusses many decisions where it found an employer's broad social media policy violated the NLRA, two decisions are particularly noteworthy for their analysis of specific policy language.

In the first decision, an employer had two versions of a social media policy. The first version, implemented in 2010, prohibited “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.” The Board considered this first policy unlawful because the policy contained broad terms such as “defamatory” and it applied specifically to discussing work-related issues.

Subsequently, the employer replaced the first policy with a new one that prohibited the use of social media to post or display comments about “coworkers, 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 Board found no fault with the new policy because the policy could not be reasonably understood by employees as restricting protected Section 7 activity. Notably, the lawful policy specifically listed plainly egregious behavior, including violations of the employer's policies against unlawful harassment and discrimination.

In another recent decision, the Board also found the employer's social media policy not unlawful. There, the employer promulgated a rule that stated:

[T]he 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. It 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. (Emphasis added).

The Board found this policy language lawful primarily because it believed that employees could not reasonably interpret the rule as prohibiting communications about working conditions or terms of employment.

These decisions (and the others discussed in the Board report) are excellent guides for employers creating and revising their social media policies. As an initial matter, employers would be wise to adopt the language similar to the above policies because that language has been clearly endorsed by the Board. Moreover, based on the recent Board report, employers should follow these additional guidelines when crafting their policies:

• Do not prohibit employees from publishing any representation about the company because Section 7 protects employee communications to the public that are part of or related to an ongoing labor dispute.
• Do not prohibit broad categories of conduct, such as “insubordination,” “disrespectful conduct,” “defamatory conduct,” “inappropriate conversations,” or “unprofessional communications that could negatively impact the employer” because those prohibitions could reasonably be construed by employees to preclude protected Section 7 activity.
• Do not prohibit employees from identifying themselves to others as your employee when discussing terms and conditions of their employment via social media sites because employees could reasonably interpret such a policy as prohibiting protected activity, such as criticism of the employer's treatment of employees, labor practices, or terms and conditions of employment. Also, do not require employees to obtain prior company approval to identify themselves as company employees because the Board views this as harmful to the employees' rights to engage in protected concerted activity and to locate other employees through social media who may have the same concerns.
• Do not prohibit employees from sharing information with outside parties about their or their coworkers' terms and conditions of employment because employees have a Section 7 right to discuss their terms and conditions of employment among themselves and with non-employees.
• Do not prohibit the use of the company's name or logos outside the course of business where the name or trademark is used in conjunction with protected concerted activity. Employees have a Section 7 right to use their employer's name or logo to communicate with other employees and the public about a labor dispute.
• Do not demand with a threat of discipline that employees first bring all work-related concerns to a supervisor or manager before airing their concerns via social media because this unlawfully restricts protected Section 7 activity.
• Do not require employees to expressly state that their comments are their personal opinion and not those of the employer every time they post work-related content on social media because the Board believes that this constitutes a significant burden on the exercise of the employee's Section 7 rights.
• Do not rely solely on a statement within the policy that the policy does not interfere with an employee's right to engage in collective action pursuant to NLRA Section 7 because such a statement will not guarantee that the policy does not violate the NLRA.

Distinguishing 'Individual Gripes' from 'Concerted
Activity'

Generally, employees engaging in discussion with other employees as to terms and conditions of their employment on social media platforms are engaging in protected concerted activity, while employees airing individual gripes against their employer without co-worker comments or participation are not protected. See Report of Acting Gen. Counsel Concerning Social Media Cases, OM 11-74 (Aug. 18, 2011). The Board, in its most recent report, has provided additional guidance for employers as to what constitutes an individual, personal gripe and what constitutes protected concerted activity.

Two decisions in particular, both of which involve an employee criticizing the employer on Facebook, illustrate the Board's current position. In the first decision, the Board found the employee's Facebook postings were protected concerted activity. In the second decision, the Board concluded that the employee's Facebook postings were personal “venting” and did not constitute protected concerted activity.

In the first decision, a veterinary hospital employee discussed with two separate coworkers the promotion of a co-manager. The employee said she was upset with the selection of the co-manager and the process for filling the position. When she got home, the employee posted a message on her Facebook account expressing her frustration. Three coworkers responded to the post, which resulted in a Facebook conversation about the co-manager and mismanagement at the hospital. One coworker stated that it would be funny if all the good employees quit the hospital, and the employee stated that “this wasn't over by a long shot, and that her days at the employer were limited.” Subsequently, the hospital terminated the employee and one of the coworkers and disciplined two other coworkers who were involved in the Facebook conversation.

The Board concluded, however, that the employees had engaged in protected concerted activity because their Facebook discussion was “concerted activity for mutual aid and protection within the meaning of Section 7.” The Board based its decision on the fact that the employee's original Facebook post “sparked a collective dialogue” and the ensuing conversation involved shared concerns over terms and conditions of employment. Moreover, although the Board noted that concerted actions expressed in the Facebook conversation were of a “preliminary nature,” it believed that further movement toward concerted action was thwarted by the employer's pre-emptive discharge and discipline of the employees, so the employer “unlawfully prevented the fruition of the employees' protected concerted activity.”

In sharp contrast, the Board in the second decision found no concerted activity by an employee who posted criticisms of his employer on Facebook. There, a long-distance truck driver learned that roads were closed due to snow. He was unable to reach his employer's on-call dispatcher to report the road conditions, but he spoke to other drivers and discussed his inability to reach the on-call dispatcher. The driver then made multiple posts on his Facebook page indicating the road was closed, no dispatcher answered when he called, and that if drivers were late, it would be the company's fault. He also stated that his employer was “running off all the good, hard-working drivers.” Notably, no other employees joined in this Facebook conversation, though several days later a manager posted a critical response to the driver's Facebook post, which led to a Facebook conversation between them. Subsequently, the driver was demoted as a result of his Facebook comments and unprofessionalism.

On review, the Board concluded that the driver was merely expressing his own frustration while stranded by the snow and was griping about his inability to reach the on-call dispatcher. Although the driver discussed his gripe with other drivers, the Board found that the driver's Facebook activity was not a continuation of collective concerns among drivers. It was particularly important that the driver did not discuss his Facebook posts with other employees, none of his coworkers responded to his posts, and the driver was not seeking to induce or prepare for group action.

As these cases illustrate, the active participation of other coworkers in social media conversations is truly crucial to a finding of protected concerted activity. Personal complaints only ' without participation of coworkers ' are not protected activity.

In its recent report, the Board also provided insight into factors other than participation of coworkers that it will consider when distinguishing protected concerted action from unprotected individual griping. Specifically, the Board will analyze whether:

• The employee's motivation was to engage in concerted activity regarding the terms or conditions of employment;
• The employee had a particular audience in mind when he or she made the social media post;
• The post contained language suggesting that the employee wanted to induce coworkers to engage in group action;
• The employee solicited group support for the employee's individual complaint;
• The post grew out of prior discussion between coworkers regarding the terms or conditions of their employment;
• The concerns raised by the employee have only a tangential or attenuated relationship to employee terms and conditions of employment; and
• The employee shared personal concerns through social media with coworkers or supervisors that were made solely on his or her own behalf and did not involve sharing common concerns.

Conclusion

Ultimately, employer social media policies and employees' use of social media continues to be a hot topic for the National Labor Relations Board. As the new report shows, the Board recently found many employer policies unlawfully overbroad and discipline and termination of employees pursuant to those policies unlawful. As a result, employers must carefully draft their policies in compliance with the Board's most recent social media report, and continue to tread lightly when terminating and disciplining employees for their use of social media.

Anna R. Hickman is an attorney practicing in the Labor & Employment Group at Nilan Johnson Lewis, P.A. in Minneapolis. She can be reached at [email protected] or 612-305-7672.

In February 2010, after a severe snowstorm, a manager at a manufacturing plant asked a female administrative assistant if she had made it into work the day before. When she reported that she did not make it in, the manager laughed and said he knew the female employees would not make it into work that day. Offended by the manager's comment, the administrative assistant reported it to her supervisor and an HR assistant, neither of whom took action. The next day, the administrative assistant used her cell phone to post a message on Facebook, which contained some profanity, and stated that she did not appreciate being told that she was less of a person because she was a woman. One of her coworkers participated in the Facebook conversation that ensued over the next several hours. During the conversation, the administrative assistant made several derogatory comments about the manager without specifically naming him. Report of Acting Gen. Counsel Concerning Social Media Cases, OM 12-31 (Jan. 24, 2012).

Shortly thereafter, another employee told the administrative assistant that he had just been fired. The administrative assistant told the company president that she believed the termination was unfair, and she began to cry in front of him. She then went to a restroom and posted a message on Facebook using her cell phone that indicated that she was very upset and she could not believe that employees were losing their jobs because they asked management for help. When she returned to her work area, the company president asked to meet with her and told her that she was getting upset over something that was none of her business and management did not like that she shared her opinion with other employees. Later that day, during her lunch break, the administrative assistant posted a series of comments on Facebook from her cell phone that stated that it was a very bad day, one of her friends was fired for requesting help, and she had been scolded for caring about the situation. That same day, the company president terminated her employment because of her Facebook posts and because, although she was coached on not getting involved with the problems of other employees, she had continued to voice her opinion on Facebook.

Upon review, the National Labor Relations Board (Board) found that, under the National Labor Relations Act (NLRA), the administrative assistant was unlawfully discharged for her Facebook posts. Specifically, the Board noted that “employees' discussion of shared concerns about terms and conditions of employment, even when in its inception [it] involves only a speaker and a listener ' is an indispensable preliminary step to employee self-organization.” Moreover, it is unlawful for an employer to terminate an employee to prevent future employee discussions of terms and conditions of employment. Ultimately, the Board concluded that the administrative assistant was terminated for her protected concerted activity of engaging in discussions about working conditions with her coworkers and “as a pre-emptive strike” based on the employer's fear of what those discussions might lead to.

Using Social Media

As this case illustrates, employer policies and practices on employees' use of social media continues to be a hot topic for the National Labor Relations Board. Not only did the Board release a report concerning its recent social media decisions in August 2011, but in February ' a mere six months later ' the Board issued a second report on the issue. The August 2011 report primarily illustrated that the Board has recently considered a variety of social media-related cases and reached mixed conclusions as to the lawfulness of employers' actions. In its new report, the Board provides additional guidance for crafting social media policies and enforcing discipline on employees for their use of social media in a manner that does not violate the NLRA.

The Protections Granted by The NLRA

Section 8(a)(1) of the NLRA provides that it is an unfair labor practice to interfere with, restrain or coerce employees in the exercise of the rights guaranteed under Section 7 of the Act. 29 U.S.C. ' 158 (8)(1). “An employer violates Section 8(a)(1) through the maintenance of a work rule if that rule 'would unreasonably tend to chill employees in the exercise of their Section 7 rights.'” Report of Acting Gen. Counsel Concerning Social Media Cases, OM 12-31. Under Section 7, “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. ' 157 (emphasis added).

New Guidance on Crafting Social Media Policies

Although the Board in its most recent report discusses many decisions where it found an employer's broad social media policy violated the NLRA, two decisions are particularly noteworthy for their analysis of specific policy language.

In the first decision, an employer had two versions of a social media policy. The first version, implemented in 2010, prohibited “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.” The Board considered this first policy unlawful because the policy contained broad terms such as “defamatory” and it applied specifically to discussing work-related issues.

Subsequently, the employer replaced the first policy with a new one that prohibited the use of social media to post or display comments about “coworkers, 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 Board found no fault with the new policy because the policy could not be reasonably understood by employees as restricting protected Section 7 activity. Notably, the lawful policy specifically listed plainly egregious behavior, including violations of the employer's policies against unlawful harassment and discrimination.

In another recent decision, the Board also found the employer's social media policy not unlawful. There, the employer promulgated a rule that stated:

[T]he 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. It 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. (Emphasis added).

The Board found this policy language lawful primarily because it believed that employees could not reasonably interpret the rule as prohibiting communications about working conditions or terms of employment.

These decisions (and the others discussed in the Board report) are excellent guides for employers creating and revising their social media policies. As an initial matter, employers would be wise to adopt the language similar to the above policies because that language has been clearly endorsed by the Board. Moreover, based on the recent Board report, employers should follow these additional guidelines when crafting their policies:

• Do not prohibit employees from publishing any representation about the company because Section 7 protects employee communications to the public that are part of or related to an ongoing labor dispute.
• Do not prohibit broad categories of conduct, such as “insubordination,” “disrespectful conduct,” “defamatory conduct,” “inappropriate conversations,” or “unprofessional communications that could negatively impact the employer” because those prohibitions could reasonably be construed by employees to preclude protected Section 7 activity.
• Do not prohibit employees from identifying themselves to others as your employee when discussing terms and conditions of their employment via social media sites because employees could reasonably interpret such a policy as prohibiting protected activity, such as criticism of the employer's treatment of employees, labor practices, or terms and conditions of employment. Also, do not require employees to obtain prior company approval to identify themselves as company employees because the Board views this as harmful to the employees' rights to engage in protected concerted activity and to locate other employees through social media who may have the same concerns.
• Do not prohibit employees from sharing information with outside parties about their or their coworkers' terms and conditions of employment because employees have a Section 7 right to discuss their terms and conditions of employment among themselves and with non-employees.
• Do not prohibit the use of the company's name or logos outside the course of business where the name or trademark is used in conjunction with protected concerted activity. Employees have a Section 7 right to use their employer's name or logo to communicate with other employees and the public about a labor dispute.
• Do not demand with a threat of discipline that employees first bring all work-related concerns to a supervisor or manager before airing their concerns via social media because this unlawfully restricts protected Section 7 activity.
• Do not require employees to expressly state that their comments are their personal opinion and not those of the employer every time they post work-related content on social media because the Board believes that this constitutes a significant burden on the exercise of the employee's Section 7 rights.
• Do not rely solely on a statement within the policy that the policy does not interfere with an employee's right to engage in collective action pursuant to NLRA Section 7 because such a statement will not guarantee that the policy does not violate the NLRA.

Distinguishing 'Individual Gripes' from 'Concerted
Activity'

Generally, employees engaging in discussion with other employees as to terms and conditions of their employment on social media platforms are engaging in protected concerted activity, while employees airing individual gripes against their employer without co-worker comments or participation are not protected. See Report of Acting Gen. Counsel Concerning Social Media Cases, OM 11-74 (Aug. 18, 2011). The Board, in its most recent report, has provided additional guidance for employers as to what constitutes an individual, personal gripe and what constitutes protected concerted activity.

Two decisions in particular, both of which involve an employee criticizing the employer on Facebook, illustrate the Board's current position. In the first decision, the Board found the employee's Facebook postings were protected concerted activity. In the second decision, the Board concluded that the employee's Facebook postings were personal “venting” and did not constitute protected concerted activity.

In the first decision, a veterinary hospital employee discussed with two separate coworkers the promotion of a co-manager. The employee said she was upset with the selection of the co-manager and the process for filling the position. When she got home, the employee posted a message on her Facebook account expressing her frustration. Three coworkers responded to the post, which resulted in a Facebook conversation about the co-manager and mismanagement at the hospital. One coworker stated that it would be funny if all the good employees quit the hospital, and the employee stated that “this wasn't over by a long shot, and that her days at the employer were limited.” Subsequently, the hospital terminated the employee and one of the coworkers and disciplined two other coworkers who were involved in the Facebook conversation.

The Board concluded, however, that the employees had engaged in protected concerted activity because their Facebook discussion was “concerted activity for mutual aid and protection within the meaning of Section 7.” The Board based its decision on the fact that the employee's original Facebook post “sparked a collective dialogue” and the ensuing conversation involved shared concerns over terms and conditions of employment. Moreover, although the Board noted that concerted actions expressed in the Facebook conversation were of a “preliminary nature,” it believed that further movement toward concerted action was thwarted by the employer's pre-emptive discharge and discipline of the employees, so the employer “unlawfully prevented the fruition of the employees' protected concerted activity.”

In sharp contrast, the Board in the second decision found no concerted activity by an employee who posted criticisms of his employer on Facebook. There, a long-distance truck driver learned that roads were closed due to snow. He was unable to reach his employer's on-call dispatcher to report the road conditions, but he spoke to other drivers and discussed his inability to reach the on-call dispatcher. The driver then made multiple posts on his Facebook page indicating the road was closed, no dispatcher answered when he called, and that if drivers were late, it would be the company's fault. He also stated that his employer was “running off all the good, hard-working drivers.” Notably, no other employees joined in this Facebook conversation, though several days later a manager posted a critical response to the driver's Facebook post, which led to a Facebook conversation between them. Subsequently, the driver was demoted as a result of his Facebook comments and unprofessionalism.

On review, the Board concluded that the driver was merely expressing his own frustration while stranded by the snow and was griping about his inability to reach the on-call dispatcher. Although the driver discussed his gripe with other drivers, the Board found that the driver's Facebook activity was not a continuation of collective concerns among drivers. It was particularly important that the driver did not discuss his Facebook posts with other employees, none of his coworkers responded to his posts, and the driver was not seeking to induce or prepare for group action.

As these cases illustrate, the active participation of other coworkers in social media conversations is truly crucial to a finding of protected concerted activity. Personal complaints only ' without participation of coworkers ' are not protected activity.

In its recent report, the Board also provided insight into factors other than participation of coworkers that it will consider when distinguishing protected concerted action from unprotected individual griping. Specifically, the Board will analyze whether:

• The employee's motivation was to engage in concerted activity regarding the terms or conditions of employment;
• The employee had a particular audience in mind when he or she made the social media post;
• The post contained language suggesting that the employee wanted to induce coworkers to engage in group action;
• The employee solicited group support for the employee's individual complaint;
• The post grew out of prior discussion between coworkers regarding the terms or conditions of their employment;
• The concerns raised by the employee have only a tangential or attenuated relationship to employee terms and conditions of employment; and
• The employee shared personal concerns through social media with coworkers or supervisors that were made solely on his or her own behalf and did not involve sharing common concerns.

Conclusion

Ultimately, employer social media policies and employees' use of social media continues to be a hot topic for the National Labor Relations Board. As the new report shows, the Board recently found many employer policies unlawfully overbroad and discipline and termination of employees pursuant to those policies unlawful. As a result, employers must carefully draft their policies in compliance with the Board's most recent social media report, and continue to tread lightly when terminating and disciplining employees for their use of social media.

Anna R. Hickman is an attorney practicing in the Labor & Employment Group at Nilan Johnson Lewis, P.A. in Minneapolis. She can be reached at [email protected] or 612-305-7672.