In the social media era, companies are being exposed to new modes of communication that make getting a message to the four corners of the earth easy to accomplish and nearly impossible to undo, especially when the information is scandalous and comes from a seemingly reliable source, such as an employee. Accordingly, companies are increasingly looking at their employment policies, specifically their social media policies (SMPs), to protect their interests. Unfortunately, some employers are crafting their SMPs in such a way that they violate the National Labor Relations Act.
Enacted in 1935, the National Labor Relations Act (NLRA) protects the rights of employees, with or without a union, to act together to address conditions in the workplace. This protection includes work-related conversations and has been held to apply even when conversations are conducted on social media, including Facebook and Twitter. The National Labor Relations Board (NLRB), an independent federal agency that enforces the NLRA, has found reasonable cause to believe some policies and disciplinary actions violated the NLRA, while in other cases, investigations found the communications were not protected and discipline did not violate the NLRA.
Since 2010, the NLRB has been receiving charges based on social media, and the Office of General Counsel has issued three memos to provide guidance and ensure consistent enforcement actions. Although many of the early social media cases were settled by agreement of the parties, cases may proceed to trial before agency administrative law judges. Those decisions can be appealed to the NLRB in Washington, D.C. These cases can result in imposition of fines against the employer and remedies including reinstatement of employees with back wages. In reviewing the agency guidance and how cases have been decided, employers can make informed decisions about how to proceed with drafting and enforcing their own policies.
For the purposes of this article, we will refer to the NLRB generally and use the term interchangeably when describing its various bodies, with a focus on how the NLRB will view employment practices.
Section 7 of the NLRA applies to employers whether they have a union or not. The relevant portion of Section 7 gives employees “the right to . . . engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (emphasis added). Section 8(a)(1) of the NLRA provides it is a violation for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”
An employer can violate Section 7 through its policies without meaning to or realizing it. Violations of Section 7 can happen in one of two ways: (1) unlawful application of a lawful policy; (2) adopting a policy that is overly broad or unlawful on its face. A policy that would otherwise be lawful will be a violation of Section 7 if it is applied in a way that punishes an employee who is engaged in protected concerted activity. Even if an SMP has not been adversely effectuated against an employee, it could be found to be a violation. Policies must be written in such a way that they do not discourage employees from engaging in protected concerted activity. Protected concerted activity includes discussing terms and conditions of employment with other employees. However, postings that are not work related will not have Section 7 protections.
Concerted activities. Concerted activities are activities undertaken together by two or more employees, or by one on behalf of others. The NLRB has stated that individual communication is concerted only if:
Protected concerted activity online. It may not always be clear when an employee’s social media post is concerted activity “for the purpose of . . . mutual aid or protection” under Section 7. As a general rule, policies should never be so broad as to prohibit discussions of wages or working conditions among employees. When it comes to criticism of the employer or management, additional analysis may be needed. If employees are discussing something that is tangentially related to work (e.g., the boss, actions the boss took or did not take, or even general complaints about the work itself), it may be classified as having the purpose of mutual aid or protection when the reason for the conversation or the post is an attempt to garner support or rally others in a first step toward a group action or to communicate to management on behalf of the group.
Examples of activities that the NLRB has classified as protected are:
There is a limit, however; the NLRB has found that when activity crosses over from being “constructive” to “malicious or reckless,” it is subject to regulation by an employer. However, simply being sarcastic or communicating in a mocking way does not generally rise to the level of malicious or reckless.
Conduct the NLRB has found was not concerted activity includes:
Conflicts may also arise when an employer is trying to address concerns between employees. The NLRB found an employer violated the NLRA by firing five employees for posting Facebook comments about a co-worker making allegations of their poor work performance. The co-worker complained about the posts about her, and the workers were terminated for bullying and harassment. The NLRB found the employees were engaged in protected concerted activity. The case turned both on the content of the posts and the process the employer followed (Hispanics United of Buffalo, Inc. and Carlos Ortiz, 359 NLRB No. 37 (2012)).
The NLRB uses a two-step analysis to determine if a work rule or a policy violates Section 8(a)(1).
Policies that are facially invalid. The NLRB will find an SMP that restricts Section 7 activity alone, or combined with other employer policies, explicitly invalid on its face. For example, the SMP itself may be fine, but if the employer has another policy that restricts employees from discussing how much they earn and tries to enforce the SMP based on that content, the NLRB may find a violation because the pay discussion policy is invalid on its face as it explicitly restricts Section 7 activities.
Policies that are overbroad. How does one know if an SMP is overbroad? Any policy that “reasonably tends to chill employees in the exercise of their Section 7 rights” is likely overbroad (Lafayette Park Hotel, 326 NLRB Nos. 824, 825 (1998), enforced 203 F.3d 52 (D.C. Cir. 1999)). If a rule doesn’t explicitly restrict protected activity, it can be unlawful if employees would reasonably believe it prohibits Section 7 activity. For example, a rule prohibiting “statements that damage the company or any person’s reputation” or that bars “inappropriate discussions” without further examples or definition is overbroad because a reasonable person could construe the rule to prohibit discussions of how management treats employees. Without examples or limitations on its application, such ambiguous rules are open to the reasonable interpretation of employees that they are being restricted in the exercise of their Section 7 rights—and are therefore unlawful.
If a policy provides that employees will be disciplined for “inappropriate discussions” alone, employees could reasonably interpret that to include protected criticism of employer labor policies, treatment of employees, or terms and conditions of employment. But if the term is defined or if the policy explicitly excludes Section 7 activity, then the same policy can be lawful.
Policy language the NLRB has found unlawful includes:
Employees may reasonably believe that such policies prohibit Section 7–protected discussion and therefore may resist engaging in it for fear of violation.
In addition to overly broad policies, the NLRB will also look at the circumstances surrounding a policy. If a policy was developed in response to union activity, for example, or if the policy has been applied to restrict the exercise of Section 7 rights, it will be deemed unlawful. If the employer has a strict policy but has not enforced it in regard to personal use of office computers to check Facebook during lunch or breaks, a sudden change in response to a Facebook organizing effort will get closer scrutiny by the NLRB.
How employers respond to posts, even when they believe they may have an actionable claim, can also trigger the NLRA. Employer threats to sue employees for defamation may violate Section 8 if they have a significant chilling effect on all other employees’ exercise of Section 7 rights.
In addition to content, where communication happens may also make a difference. An employer was found not to have violated Section 8 when it fired an employee for inappropriate tweets regarding homicides, sexual content, and criticizing an area television station. The employee, whose Twitter account identified him as a reporter for the employer newspaper and linked to the employer website, had previously been warned it was not okay to make those tweets and was terminated for disregarding guidance to refrain from using derogatory language that could damage the goodwill of the employer. The NLRB found the communication to the employee was in the context of discipline, not a policy. Because this was specific to him, it did not violate Section 8 and it was not an unlawful rule (see Report of the General Counsel, Memorandum OM 11-74, August 18, 2011). Employers can also enforce rules regarding posting to the employer social media platforms as well as limit media contact to designated employees who speak on behalf of the company as part of their job duties.
Given the importance of a company’s reputation coupled with the ease with which information can be shared and the speed with which it can be divulged, it is becoming increasingly important for organizations to regulate what is presented both in and out of the public sphere. Although many employers would love to clamp down on any and all unauthorized communication, it is easy to run afoul of the NLRA. To avoid the pitfalls mentioned above, employers should carefully craft policies, regularly review handbooks for potential violations, and encourage management training to help identify issues prior to employee discipline.
