Most employees use the Internet while at work whether on company-issued equipment or their own mobile devices. They probably update their LinkedIn, Facebook and Twitter pages, and they may gripe (and even blog) about their bosses, co-workers and workplaces. Even human resources and supervisory staff may use social media sites to research job applicants, check on current employees, and recommend or provide an employment reference to former employees. They may even be monitoring employees' e-mails.
Unfortunately, this unregulated use of social media sites has landed employers in hot water. And now employers have a new authority to face regarding social media issues: the National Labor Relations Board (NLRB), the federal agency charged with protecting employees' rights to engage in union-related activity. The NLRB officially has taken a hardline stance toward matters concerning employers' responses to employees' use of social media sites.
Social media and the workplace
Numerous state and federal courts have weighed in on myriad issues relating to employees' use of social media sites. Courts have imposed liability on employers because employers use social media sites to evaluate applicants or make employment decisions with respect to current employees based on protected categories, such as race, color, religion, age, disability, sex (including pregnancy and identity), sexual orientation, marital status, national origin, ancestry and citizenship status.
Courts also have held employers liable for discriminating against applicants or employees for engaging in lawful off-duty conduct (such as using legal products, including alcohol and tobacco while off work). Also, courts have sanctioned employers for violating state and federal laws governing privacy rights, including unlawfully intercepting and retrieving employees' electronic communications from storage and otherwise invading employees' privacy.
Indeed, recent federal district court cases have resulted in outcomes against employers who accessed employees' e-mail accounts and password-protected social media accounts and took disciplinary action based on what they saw. The message is clear: Employers can face liability for their responses to employees' use of social media sites.
Of course, employers also have succeeded in terminating and suing employees for violating nondisparagement agreements, fiduciary duties and defamation laws; breaching confidentiality agreements by divulging company trade secrets and other confidential information; and breaching noncompete and/or nonsolicitation agreements by pursuing online relationships with existing clients. Employers also successfully have sued employees for invading the privacy of and harassing or discriminating against co-workers, supervisors and others through social media sites.
Although these issues have been prevalent in the employment arena for some time, employers of all sizes have continued to grapple with the intricate and complex issues resulting from the use of social media sites in the workplace. The new NLRB agenda to strictly monitor and prosecute employers for their actions with respect to employees' use of social media sites to engage in "protected concerted activity" further complicates employers' already tenuous treatment of this thorny issue.
Disciplining griping employees
On July 7, 2009, the court in Guard Publishing Co. d/b/a Register Guard v. NLRB held the company's discipline of an employee who used work e-mail to discuss her impressions of a union rally violated the National Labor Relations Act (NLRA), which protects, among other rights, employees' right to engage in protected concerted activity and discuss their working conditions. This key decision ignited the current onslaught of NLRB activity.
More recently, on Oct. 27, 2010, the NLRB issued an unfair labor practice complaint against American Medical Response (AMR) of Connecticut, an ambulance service. In NLRB Reg. 34 v. Ame. Med. Response of Conn., the NLRB accused AMR of having unlawfully terminated an employee under the NLRA for posting disparaging comments about her supervisor on her Facebook page from her home computer. The posts appeared after the supervisor allegedly denied the employee union representation during an investigatory interview and threatened her with discipline for requesting union representation.
Several co-workers posted supportive comments in response to the employee's post. The employee then posted more negative remarks about her supervisor. The comments were outrageous by any standards: The employee called her supervisor a "scumbag" and "dick."
Accordingly, AMR fired the employee for violating company policies prohibiting employees from making "disparaging, discriminatory or defamatory comments when discussing the company or the employee's superiors, co-workers and/or competitors" or from depicting the company on the Internet without the company's permission. The NLRB disagreed with AMR's decision and asserted the employee's Facebook postings were protected concerted activity and her termination violated her NLRA rights to protest her working conditions. The NLRB also argued AMR's policies were unlawful because they broadly interfered with employees' rights to engage in protected concerted activity.
As part of the settlement reached Feb. 7, 2011, AMR was required to revise its policies to bring them into compliance with the NLRA and enter into a separate, undisclosed agreement with the employee. Whatever the details of that separate agreement, it is likely the NLRB's action resulted in monetary loss and negative publicity for the company.
The NLRB has made clear it is not simply targeting cases in which an employee is terminated for engaging in protected concerted activity on social media sites but also cases where lesser forms of discipline are issued.
For example, in April 2011, the NLRB announced its intent to pursue Thomson Reuters Corp. for its social media policy. An employee was verbally disciplined after sending a tweet that said: "One way to make this the best place to work is to deal honestly with Guild members."
Although the issued discipline was minor, the NLRB took the position that the discipline and the company's allegedly overbroad policy had a chilling effect on the employees' right to discuss their working conditions and violated the NLRA. The NLRB and Thomson Reuters representatives reached a tentative settlement agreement at the end of April 2011.
On May 9, 2011, the NLRB issued another unfair labor practice complaint, this time against Hispanics United of Buffalo (HUB) Inc., a nonprofit organization.
In NLRB v. Hispanics United of Buffalo Inc., the NLRB accused HUB of violating the NLRA by firing five employees after they posted critical comments about their working conditions in response to an employee's Facebook post. The post quoted an allegation by another co-worker that the employees were not doing enough to help the organization's clients. The company's stated reason for the terminations was that the Facebook comments constituted online harassment of the quoted co-worker. However, the NLRB complaint alleged the company's actions interfered with the employees' rights under the NLRA to engage in protected concerted activity for their mutual aid or protection.
On Sept. 2, 2011, an administrative law judge with the NLRB Division of Judges ruled the employees' Facebook postings regarding their employment was protected, concerted activity and their subsequent termination was retaliatory.
The NLRB issued yet another unfair labor practice complaint May 20, 2011. In Knauz BMW, the NLRB charged Knauz BMW, an auto dealership, with violating the NLRA by firing a car salesman after he posted remarks on Facebook criticizing the company.
The employee posted photos of a promotional event at the dealership with comments criticizing the quality of the food and beverages offered to the dealership's potential customers because he believed the low quality of the offerings would have a negative effect on the sales commissions earned. Although the employee eventually removed the posts at his employer's request, he was fired soon after. The complaint alleges the termination was motivated by the employee's Facebook posts, which were protected concerted activity, and was intended to discourage other employees from exercising their protected rights to discuss their working conditions.
On Sept. 28, 2011, an administrative law judge with the NLRB Division of Judges ruled on the complaint, holding Knauz BMW's termination of the employee was lawful.
These NLRB complaints make clear the NLRB is keeping a watchful eye on employers' responses to employees' online protected concerted activity. Regardless of how outrageous an employee's comments might be, the NLRB has taken the stance that protected concerted activity is protected—even if it takes place on a social media site.
Not every gripe is protected
Fortunately for employers, the NLRB's Division of Advice and Office of General Counsel (GC) have issued several advice memoranda making clear not all employee statements on social media sites about employers constitute protected concerted activity under the NLRA. You should stay informed of these advice memoranda by periodically visiting www.nlrb.gov; the memoranda provide useful tips regarding how to handle tricky situations.
For example, on April 21, 2011, the Division of Advice issued a memorandum finding the Arizona Daily Star did not violate the NLRA when it terminated a reporter for posting inappropriate and offensive statements about current events and other media publications and companies on a work-related Twitter account.
The newspaper fired the employee for disregarding warnings to "refrain from using derogatory comments in any social media forum that may damage the goodwill of the company." The reporter filed an unfair labor practice charge alleging he was illegally fired pursuant to an overbroad and unlawful oral rule prohibiting public comment. The division found the employee's termination did not violate the NLRA because his Twitter activity "did not involve … protected conduct relating to the terms and conditions of his employment or seek[ing] to involve other employees in issues related to employment."
The division also found that though the newspaper's warnings to the reporter contained statements that could be construed to prohibit activities protected by the NLRA, the statements did not constitute rules because they were made to only one employee, the reporter.
Similarly, on June 29, 2011, the GC issued an advice memorandum in Rural/Metro finding the employer, a provider of medical and fire services transportation, did not violate the NLRA when it terminated an employee for posting Facebook messages about the employer on a U.S. senator's page in violation of the employer's code of ethics and business conduct policy.
The messages in question expressed the employee's disagreement with how emergency services were handled in the state and her dissatisfaction with the employer's cap on wages. The employer terminated the employee for "publicly posting disparaging remarks about the employer and confidential information about its response to a service call."
The GC concluded the employer had not violated the NLRA because the employee had not engaged in protected concerted activity. The GC found though the employee had discussed wages with other employees in response to the employer's announcement of the wage cap, the employee had not discussed her Facebook post with any other employees either before or immediately after, there had been no employee meetings or any plan to take group action regarding the wage cap, and the employee had not been trying to bring her complaints to the attention of management in concert with other employees. Accordingly, the GC recommended the charge be dismissed.
On July 7, 2011, the GC issued an advice memorandum in JT's Porch Saloon and Eatery concluding the employer, a restaurant, did not violate the NLRA when it terminated an employee for posting a message on his Facebook page that referenced the employer's tipping policy and expressed dissatisfaction with the wages he was receiving in response to a question from a nonemployee. The post also referred to the employer's customers as "rednecks."
About one week later, the employer terminated the employee for his Facebook post about the employer's customers. The GC held the employer did not violate the NLRA because the employee had not engaged in any protected concerted activity.
Although the employee's Facebook post concerned the terms and conditions of his employment, the GC reasoned he did not discuss the post with any of his co-workers either before or after posting it, and none of his co-workers responded to the post. Furthermore, there had been no employee meetings or any attempt to initiate group action with regard to wages; there were no efforts on the part of the bartenders to take such complaints to management; and there was no evidence the Facebook post was a logical outgrowth of a conversation the employee had taken part in with a co-worker months earlier about how the tipping policy "sucked." Accordingly, the GC recommended dismissal of the charge.
On July 19, 2011, the GC issued another advice memorandum in Martin House finding the employer, a nonprofit homeless shelter, did not violate the NLRA when it discharged an employee for posting Facebook comments referencing and mocking the employer's mentally disabled clients.
Although the employee's posts garnered some comments from her Facebook friends, no comments were from co-workers. However, a former client of the employer, who was Facebook friends with the employee, saw the posts and reported them to the employer. The employer terminated the employee for interfering with the recovery purpose of the employer's program by using the "clients' illnesses for her personal amusement," disclosing confidential information about clients to others and using Facebook during work time.
The GC found the employer did not violate the NLRA because the employee had not engaged in protected concerted activity. None of the Facebook comments were from co-workers; the employee did not discuss any of her Facebook posts with co-workers; the employee was not seeking or preparing to induce collective action; and the posts did not implicate her working conditions. Accordingly, the GC recommended dismissal of the charge.
On the same day, the GC issued another advice memorandum regarding Wal-Mart, finding it did not violate the NLRA when it disciplined an employee for posting profane comments criticizing local store management on his Facebook page. Several co-workers responded to the employee's post with supportive comments. The next day, the employer had a disciplinary meeting with the employee and told him he was required to take a "decision day"—a one-day paid suspension that precluded the employee from promotion opportunities for a year. The employee also was told he would be terminated if such activity continued.
The GC concluded Wal-Mart did not violate the NLRA because there was insufficient evidence the employee had engaged in protected concerted activity. The GC found the employee's posts were merely an "expression of an individual gripe" and lacked language suggesting the employee was seeking to "initiate or induce" co-workers to engage in group action. Nor could it be found the Facebook posts were the logical outgrowth of prior group activity.
Although several of the employee's co-workers responded, the GC found the responses merely suggested the co-workers thought the employee's post was humorous or a plea for emotional support. Accordingly, the GC recommended dismissal of the charge.
These advice memoranda clarify that though the NLRB is taking seriously employees' complaints about being disciplined for engaging in protected concerted activity online, the NLRB still will hold these allegations to the same standards as allegations regarding in-person protected concerted activity.
Developing policy
You can take effective measures to lawfully protect your company and its hard-earned reputation from damage caused by employees' use of social media sites by developing and implementing carefully worded, lawful policies. However, it is important to remember what the NLRB made clear in its March 26, 2011, Jurys Boston Hotel decision: Having a bad employment policy may be worse than not having one at all.
In that case, the NLRB overturned a decertification election in favor of ending union representation at the employer, a hotel, because of rules in the employee handbook that prohibited solicitation and distribution on hotel property; imposed discipline for being in an unauthorized area and/or loitering inside or around the hotel without permission; and prohibited employees from wearing emblems, badges or buttons with messages of any kind other than issued nametags or approved pins that are part of the employee's uniform.
Even though employees never were required to acknowledge receipt of the handbook and there was no evidence the employer had ever enforced the rules, the NLRB held the rules had a "reasonable tendency to chill or otherwise interfere with the pro-union campaign activities of employees during the election period" and could "be reasonably construed by employees as precluding them from communicating with each other about the union and their wages, hours, and other terms and conditions of employment at their workplace."
The NLRB's decision in Jurys Boston Hotel makes it abundantly clear to employers that the mere maintenance of an overbroad rule that has not been enforced may be sufficient to violate the NLRA because it may chill employees' desire to engage in protected concerted activity and exercise other rights. Accordingly, exercise care in instituting Internet use and social media policies.
Best practices
You should regularly review your Internet use and/or social media policies to ensure they are up-to-date and well-written to comply with the law. Such policies should be consistently and nondiscriminatorily enforced. The policies should be tailored to your work force and should not contain overbroad prohibitions against employees' use of social media sites to discuss work-related matters.
The policies should make clear your company's employment policies, including anti-discrimination and anti-harassment policies, as well as confidentiality and noncompetition or nonsolicitation agreements apply with equal force to employees' online posts.
Additionally, the policies should explain false and/or profane statements about the company and its employees also are prohibited online. Steer clear from requiring employees to check with management before making any work-related posts or broader prohibitions against "negative" or "disparaging" comments about the company or company management. Also, be careful of any policies, inside and outside the Internet context, that limit employees from discussing their "work conditions" and "wages." In the current climate, provisions such as these are likely to attract unwanted attention from the NLRB and other law enforcement entities.
A good Internet use and/or social media policy should:
Appropriately drafted policies should provide incontrovertible notice to employees that the company owns its computer systems, certain monitoring may take place, company computers are primarily to be used for business purposes, and employees simply do not have an expectation of privacy when using work computers.
Although you should not access an employee's password-protected or other restricted personal e-mail and social media accounts, publically accessible accounts and posts may be used in evaluating prospective and current employees. When a review of such accounts reveals legitimately improper posts, you are free to take appropriate disciplinary action pursuant to your employment policies and agreements.
Also, make certain human resources and supervisory employees are properly trained to identify and properly respond to policy violations.
As the employment arena continues to undergo rapid changes, you cannot afford to ignore employees' rampant use of social media sites. Now is a good time to revisit your Internet use and social media policies and make sure they adequately protect your workplace from costly unfair labor practice charges and other legal liability.
Jason C. Kim is a partner and Gray I. Mateo-Harris is an associate in the labor and employment practice group of Chicago-based law firm Neal, Gerber & Eisenberg LLP.
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