Undoubtedly, social media (SM) experts and enthusiasts are quick to understand acronyms like SEO, VLOG, RSS, and PM. Similarly, lawyers, particularly employment lawyers, are fluent in another set of acronyms including EEOC, DOJ, FCRA, and DOL. Some of these legal acronyms have a more obvious connection with SM than others (and I discussed some in my prior monthly post about employers using social media in hiring decisions). Two less obvious acronyms, however, should be on every employer’s and SM expert’s radar, and they both start with the same three letters: NLR.
Why You Should Care About The NLRA: Generally, the National Labor Relations Act (NLRA), enacted by the U.S. Congress in 1935, deals with employee rights concerning union representation and collective bargaining in the workplace. It would be a mistake for you to ignore the rest of this post simply because your company has no union presence. This is so because under Section 7 of the NLRA, employees have the “right” to participate in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Under this section of the NLRA, concerted activity is considered “protected” when it concerns terms or conditions of employment. Before SM, it was easier to identify protected concerted activity since it usually involved a group of employees discussing work conditions and desired improvements to such conditions. Now, however, with SM, employees are often tweeting, making Facebook posts and writing on blogs about working conditions. And, when an employer has implemented a policy prohibiting employees from using SM to discuss work conditions, the employer could be in violation of Section 7 of the NLRA. As with many aspects of SM, however, the law has not quite caught up with technology and employee use of available technology.
In the age of SM, employers have legitimate concerns about their employees using SM. Some employers are encouraging their employees to use SM in order to generate more buzz, client/customer interaction, and perhaps help with SEO. Indeed, see Garrett Ira’s recent post encouraging retailers to engage their own employees in their SM outreach. At the same time, those very employers, in fact most all employers, have developed or are in the process of developing social media policies that limit employee use of SM with respect to company products, services, and working conditions. And, most employers are attempting to prohibit employees from using SM to, among other things, reveal confidential and/or trade secret information, and from posting defamatory, harassing, discriminatory, or threatening remarks about co-workers, supervisors, clients and customers. But when does an employer’s policy prohibiting the use of SM go too far? To answer this question, you should familiarize yourself with the next important acronym: NLRB.
Why You Should Keep Track Of What The NLRB Is Doing: The National Labor Relations Board (NLRB) is the federal agency tasked with enforcing the NLRA. It too was created in the 1930’s. Recently, the NLRB has been one of the most active federal agencies to tackle many employer-employee issues including the use of SM. In August 2011, the NLRB’s General Counsel issued a report analyzing several recent decisions applying the NLRA to employee SM activity. The August 2011 report detailed recent decisions on whether employees who were disciplined for SM activity were engaged in “protected activity” under the NLRA. For example, the report analyzed many specific cases finding employers to have violated the NLRA by terminating employees who were found to have engaged in protected concerted activities using SM. Some of the cases where the NLRB found the employer to have engaged in unlawful conduct include the following (note, these case examples are very fact specific and does not mean that the same result will be reached regarding the same conduct in different fact situations):
- Employer discharged five employees who posted comments on Facebook relating to allegations of poor job performance previously expressed by one of their coworkers;
- Employer discharged an employee who posted negative remarks about her supervisor on her personal Facebook page;
- Employer discharged a salesperson for posting on his Facebook page photographs and commentary that criticized a sales event held by the Employer; and
- Employer discharged and threatened to sue two employees who participated in a Facebook conversation initiated by a former coworker about the Employer’s tax withholding practices.
The report also analyzed employer policies concerning employee use of SM and found many policies to be over broad and problematic. Thankfully, the report also provided examples of specific situations where employee conduct was not protected under the NLRA. In most of those situations, the employee did not have the online discussions with other co-employees, and thus, the online discussions were not considered to have been concerted protected activity.
On January 24, 2012, to help provide further guidance, the General Counsel released a second report describing social media cases reviewed by his office. Like the first report, the new report provided specific case analysis of particular situations where employers were found to have engaged in unlawful conduct, or where employees were found to have not been engaging in protected concerted activities. Importantly for employers attempting to develop a compliant policy, this report also examined several employer SM policies and reported that five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised. The report specifically addressed SM policies ranging from confidentiality rules, to no-defamation/non-disparagement provisions and to policies limiting the use of logos, trademarks and communications with the media. Significantly, a provision that states, in no uncertain terms, that the employer’s policy does not apply to violate the NLRA (known as a “savings clause”) may insufficient to remedy otherwise deficient policies.
The General Counsel stresses two main points: First, employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. Second, an employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees. While the General Counsel’s opinions in the reports are not binding law, they provide guidance as to how the NLRB will approach cases brought to its attention and how it will analyze whether SM policies are compliant. Furthermore, the General Counsel has taken steps to track the progress of such cases, and as of January 25, 2012, over 75 cases were already being tracked. Simply, the NLRB is poised to continue to be one of the leading federal agencies for employers and employees to monitor. Thus, employers and SM experts and enthusiasts should be sure to add the NLRA and NLRB to their vocabularies.
The bottom line is that employers should take care before promulgating a SM policy or terminating/disciplining an employee for online activities. Additionally, employers should seek expert legal advice from an employment attorney who is also well-versed with SM, blogging and all the related emerging issues. In future posts, I will focus on some important items a policy should have, and should not have, in order to have the best chance at being compliant if scrutinized by the NLRB or any other agency or court.
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.