BUSINESS LAW: Regulating Employee Social Media Use

Volume 29 Number 5

By

Susy Hassan is an associate in the Palo Alto, California, office of Morrison & Foerster, where her practice focuses on employment law.

 

This article tracks developments under the National Labor Relations Act (NLRA) as it relates to limiting an employer’s ability to regulate employee social media use, whether by implementing policies to that effect or by taking disciplinary action on the basis of such use when doing so runs counter to employee rights under the act.

Regulating employer social media use. Three recent developments provide guidance on the interrelation of social media use and employee protections under the NLRA. First, on August 18, 2011, the National Labor Relations Board’s (NLRB’s) Office of the General Counsel released a report discussing the outcome of 14 cases its Division of Advice investigated in 2011 involving social media use in the employment context. Second, on September 2, 2011, an NLRB Administrative Law Judge (ALJ) issued the first post-hearing decision regarding employee social media use and NLRA rights in a case that was also the subject of the General Counsel’s report (Hispanics United of Buffalo, Inc., NLRBALJ, No. 3-CA-27872). This decision was decided against the employer and resulted in the ordered reinstatement of five employees who were found to have been unlawfully discharged for their use of social media to discuss the terms and conditions of their employment. Third, on September 28, 2011, another ALJ decision was issued on this topic (Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, NLRBALJ, No. 13-CA-46452). Taken together, the two ALJ decisions and the August NLRB report shed light on two major issues in this area of law: When does employee social media use constitute “protected concerted activity” under the NLRA, and where is the line drawn between a valid and invalid employer social media policy?

Protected concerted activity. Pursuant to Section 7 of the NLRA, employees have the right to communicate with one another about the terms and conditions of their employment. When such a communication qualifies as protected “concerted activity,” an employee cannot legally be disciplined for partaking in it. In the context of social media, the question is whether a particular use, such as a Facebook posting, qualifies.

Six of the decisions chronicled in the general counsel’s report focused on this issue and offer some guidance. To begin with, social media use is more likely to qualify as protected concerted activity where the employee discusses the terms and conditions of his or her employment in a manner that is meant to induce or further group action. The general counsel appears more inclined to characterize social media use in this fashion when it is either directed to fellow co-workers or grows out of an earlier discussion about terms and conditions of employment among co-workers. On the other hand, employee social media use is unlikely to rise to the level of protected concerted activity where it is best characterized as an individual complaint about working conditions specific to the employee and is not directed to co-workers or meant to induce group action. The report also suggests that employee comments that are “maliciously false,” a seemingly high standard, will not be protected under the NLRA and that offensive or inappropriate comments about an employer’s clients are also unlikely to be protected. These principles are further developed in Hispanics United and Knauz BMW.

In Hispanics United, an employee of a small nonprofit had an altercation with a co-worker who felt the organization’s employees were not doing enough to help their clients. The employee decided to vent her frustrations on Facebook, posting: “Lydia Cruz, a coworker feels that we don’t help our clients enough . . . I about had it! My fellow coworkers how do you feel?” Several co-workers responded to the post, joining in the employee’s sentiment, and a vigorous discussion ensued. The employer caught wind of the posts, terminated the five employees who participated in the Facebook discussion, and shortly thereafter, found itself accused of violating the NLRA. The ALJ’s opinion explained that the terminations were unlawful because the social media use qualified as protected, concerted activity in that it was discussions between co-workers about the terms and conditions of their employment. The employer was ordered to reinstate all five employees.

The opinion highlights that an employer is only liable for violating an employee’s right to engage in concerted activity where it is established that the employer in fact knew of the “concerted nature of the activity.” Further, the case confirms a focal point of the general counsel’s report, that “individual action is concerted so long as it is engaged in with the object of initiating or inducing group action” and that the “object of inducing group action need not be express.” Lastly, by citing to established NLRB precedent outside the social media context, Hispanics United is a good reminder that although the medium of communication is a new one, much of the substantive analysis in the social media context remains the same.

Knauz BMW is also consistent with the themes developed in the general counsel’s report. Here, the employer, a BMW dealership, hosted a promotional event to introduce a new car model and catered the event with a hot dog cart. Many employees were upset by the catering selection, concerned that it was inappropriately inexpensive and would have a negative impact on employee sales and commissions. One employee took his complaints to Facebook and posted a picture of the hot dog cart along with sarcastic commentary about the dealership’s decision to go “All Out” for “the most important launch of a new BMW in years.” The employee was terminated. The ALJ found that the employee’s social media use was protected, concerted activity because it concerned the terms and conditions of employment, discussed a group complaint as opposed to an individual gripe, and despite taking a “sarcastic” and “mocking” tone, was not so disparaging so as to lose protected status. Although the employee’s use of social media qualified as protected concerted activity, the employee’s discharge was held not to be unlawful under the NLRA because the ALJ found that he was terminated for unrelated misconduct.

Employer social media policies. The second major issue in this area of law relates to where the line is drawn between a valid and invalid employer social media policy. The report suggests that policies will be found to be invalid where they are overbroad, in the sense that they would effectively prohibit employees from engaging in protected activity. For example, the general counsel found a policy overbroad where it prohibited “inappropriate discussions” about the company, its managements, or its employees because this prohibition encompasses protected concerted activity. Similarly, in Knauz BMW, a policy stating that “no one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership” was held to be unlawfully overbroad because the term “disrespectful” in the context of union activity seemed “inherently subjective” and was, therefore, restrictive of employee rights under the NLRA.

Employers should not only avoid overbroad prohibitions that could be interpreted to prohibit protected concerted activity but should also consider including a disclaimer in their social media policies specifically indicating that none of the prohibitions contained in their policy should be interpreted to interfere with employee rights under the NLRA.

 

ABA Business Law Section

This article is an abridged and edited version of one that originally appeared in the November 2011 issue of the online magazine Business Law Today.
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