Every day, millions of people post messages on a wide variety of social media platforms such as Facebook, LinkedIn, Pinterest and Snapchat.  People use social media to discuss all aspects of their lives – including their work experiences.  So, what happens when an employee posts negative things about her employer?  Can an employer simply fire the employee for disloyalty?  As with many legal questions, the answer is “it depends.”

To the surprise of many employers who do not have union employees, never thought about unionization and have never been subject to any union activity whatsoever, the National Labor Relations Board (NLRB) has something to say about it.  To the extent that the employer is aware of the NLRB, she assumes it deals only with unionized workplaces.  But the times are changing.  The chair of the NLRB recently said that social media “is the new watercooler” and employees who have protection to discuss workplace issues in person, should receive similar protections when doing so online.   See Steven Greenhouse, Even If It Enrages Your Boss, Social Net Speech Is Protected, New York Times (Jan. 21, 2013).

The National Labor Relations Board

The NLRB was created from the National Labor Relations Act of 1935 (NLRA), which guarantees the right of most private sector employees to organize, to engage in group efforts to improve their wages and working conditions, to determine whether to have unions as their bargaining representative, to engage in collective bargaining, and to refrain from any of these activities.  The NLRB acts to prevent and remedy unfair labor practices committed by private sector employers and unions.  Contrary to conventional wisdom, the NLRA applies equally to non-union workplaces as to unionized ones.  Recently, the NLRB has focused on social media and how employers – union and non-union alike – enforce such policies.

Social Media As Concerted Activity

Section 7 of the NLRA assures that that “[e]mployees 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 collective bargaining or other mutual aid or protection.”  29 U.S.C. §157.  The NLRA also makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of these rights.  29 U.S.C. §158.  Long before the advent of social media, it was well established that employees act concertedly when two or more employees have a discussion or take action together.  Meyers Indus. (Meyers I), 268 N.L.R.B. 493, 493 (1984), remanded by Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985).  Moreover, an employee acts concertedly when the employee’s action results from prior collective action, when the employee acts alone but as a representative of other employees, and when an employee acts alone to initiate group action.  Meyers Indus. (Meyers II), 281 N.L.R.B. 882, 886-88 (1986); Mobil Exploration & Producing U.S., Inc. v. NLRB, 200 F.3d 230, 238 (5th Cir. 1999).  Collective conduct is for mutual aid or protection when it concerns terms and conditions of employment.  However, conduct that is found to be concerted action for mutual aid or protection can nonetheless lose protection under the Act if found to be egregious in nature. The Board has found that threats of violence, insubordination, defamation, disloyalty, or disparagement of an employer’s product constitute reasons that an employee will lose the protection of the Act.

Applying these settled principles, the NLRB has examined social media policies and found that companies having broad policies limiting an employee’s use of social media are unlawful because employees could reasonably construe such policies to prohibit protected concerted activity.  For example, the NLRB held that prohibitions on sharing personnel or confidential information on social media to be unlawful when those policies do not also clarify that employees may share wage information as well as other information about the terms and conditions of their employment.  Alternative Cmty. Living, Inc., 362 NLRB No. 55, at *1, *6 (Mar. 31, 2015).  The NLRB has also held that prohibitions on disparagement and defamation were unlawful unless the provisions were defined carefully enough to clarify that the prohibited conduct does not include critical statements about supervisors or management.

One of the most recent, and significant, cases concerning employees’ use of social media is Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 N.L.R.B. No.31 (August 22, 2014).  In that case, several employees had concerns about how the employer handled state tax deductions on their paychecks.  One former employee posted a status update on her Facebook page stating, “Maybe someone should do the owners of Triple Play a favor and buy it from them.  The can’t even do the tax paperwork correctly!!!  Now I OWE money . . . .”  The former employee’s friends, including customers and current employees commented on the posting.  One current employee simply hit the Facebook “like” button and did nothing more.  Another current Triple Play employee responded to the post as follows: “I owe too.  Such an a***hole!”  One of Triple Play’s co-owner saw the posts (his sister, who was Facebook friends with the original poster, showed it to him) and terminated the two current employees for being disloyal by commenting and even simply “liking” the post.  While the administrative law judge recognized that a balance needed to be struck between the rights of employees to speak and employers to protect their reputation, he ultimately held that the posts were protected concerted activity because they were not so disloyal, disparaging, reckless, defamatory or maliciously untrue so as to lose NLRA protection.  Id. at 5-6.  The NLRB also noted that the posts were made on an individual’s Facebook page and not in a more public space or on the employer’s website.  The NLRB analogized the Facebook conversation to one that may be overheard by a third party and not as a statement directed to the public.

Similarly, in NLRB v. Design Technology Group, LLC d/b/a Bettie Page Clothing, 359 N.L.R.B. No 96 (April 19, 2013), a group of employees complained about working late hours in an unsafe neighborhood.  Later that evening, the employees continued the discussion on Facebook without expressly referencing their complaints about working late.  One employee posted that she would be bringing a “California Worker’s Rights” book to work the next day and that her mother  worked for a labor law firm.   Another employee showed the posts to a manager who terminated all of the employees.  The NLRB held that the terminations were unlawful and that the communications on Facebook were for the employees’ mutual aid and protection.  Consequently, the Facebook posts were “concerted protected activity.”  But see Tasker Healthcare Group d/b/a Skinsmart Dermatology, 2013 WL 11230058 (May 8, 2013) (mere gripes about work are not sufficient); Richmond Dist. Neighborhood Center, 361 NLRB No. 74 (2014) (social media postings pervasively advocating insubordination with detailed descriptions of specific acts are not protected); IXL Learning, Inc. and Adrian Scott Duane, 2016 WL 1720750 (N.L.R.B. Div. of Judges April 28, 2016) (employee’s airing of his personal gripes on the recruiting site Glassdoor.com was not protected because the comments were designed to harm employer’s recruiting efforts and not to engage in concerted activity for the welfare and benefit of all employees).

RECOMMENDATIONS

While it’s not clear why the NLRB has taken such an active role in monitoring non-union businesses’ social media policies, especially in the non-union employer context, some commentators have suggested that the NLRB is trying to reassert its relevance in a country where union membership and union participation has been declining for decades.  Whatever the reason, employers need to carefully study all their employment policies considering not just ever-changing state laws but also the NLRA.  Employers’ social media policies that limit (or even prohibit) an employee’s right to post comments and information about his or her employer or co-workers could be subject to challenge.  In crafting appropriate policies, employers should consider the following issues:

• Clear language is key – have a policy that reminds the employees to ensure that any social media postings do not create the impression that they are speaking in any official capacity or on behalf of the company.

• Make sure all prohibitions are specific and have a rational business basis. For example, do not have a policy that blanketly precludes employees from posting concerning broad areas such as the publication of “confidential information.”  Instead, be specific as to what cannot be disclosed (such as “internal financial information” or “marketing projections”).

• Be particularly careful about stating that employees are prohibited from commenting about the employer in ways that are “inappropriate,” “disparaging” or “embarrassing.” Instead, employers should expressly state that nothing in the policy is designed to hinder, limit or curtail an employee’s activities under Section 7 of the NLRA. 

• If an employer tasks an employee to use social media via the employer’s own site or an employer’s account, have a clear and written policy indicating that it is the employer’s site and that the employer owns all usernames, logins, passwords and content.

Social media is a new world for employers and its use is growing rapidly.  While social media can be a useful tool and an employer can achieve benefits from an employee’s positive use, it can also be a trap.  Employers should carefully design social media policies that fit their workplace and comply with not only state and federal laws concerning discrimination but also the NLRA.

If you have questions about this or any other employment-related matter, please call or email John Rubiner at 310/441-0500; jrubiner@gerardfoxlaw.com.  Mr. Rubiner chairs Gerard Fox Law’s Labor and Employment Group.