By Leila G. O’Carra
A few weeks ago, the Acting General Counsel for the National Labor Relations Board (NLRB) issued a report presenting recent case developments relating to social media. He wrote about the following cases in which the NLRB found that the employer had violated the NLRA:
● A non-profit social services provider unlawfully discharged employees for posting on Facebook. In preparation for a meeting with management, the employee posted a question asking whether her co-workers felt that they provided sufficient aid to the employer’s clients. Although some of the responses contained sarcasm and swear words, the NLRB ruled that the Facebook conversation was protected concerted activity.
● An ambulance service wrongfully discharged an employee for complaining about her supervisor on Facebook. The employee posted negative comments after the supervisor illegally refused to allow the employee union representation in connection with a customer complaint about the employee’s work. The employee’s Facebook comments were protected, despite the name-calling (i.e. “scumbag”) used in the post because the comments were provoked by the supervisor’s unlawful refusal to provide union representation.
● A luxury car dealership violated the NLRA by firing a salesman because he posted on Facebook photos and comments criticizing the employer’s choice of cheap refreshments at a sales event. The post qualified as concerted activity because it followed a meeting during which several employees expressed concern about the refreshments and the salesman’s Facebook comments expressed the sentiment of the group. Further, the comments related to the terms and conditions of the salesman’s employment because the success of the sales event could impact his commission-based income.
● A sports bar unlawfully discharged employees who posted on Facebook derogatory comments about the employer’s administration of income tax withholdings because this subject matter was a shared concern about a term of employment.
In several other cases, the NLRB found that the employee’s social networking activities (described below) were not concerted activity, and therefore, were not protected:
● a newspaper reporter’s tweets about homicides and criticism of an area TV station;
● a bartender’s Facebook post stating that he did the waitresses’ work without tips and that the customers were “rednecks;”
● a dispatcher for a medical transportation and fire protection service’s post on a U.S. Senator’s wall complaining about her employer, its poor resources, and the state’s encouragement of cheap emergency services;
● a post by an employee of a non-profit facility for homeless people stating that it was spooky being in a mental institution alone overnight and she did not know whether a client was laughing at her or at the client’s own voices; and,
● a customer service employee at a retail store’s Facebook comment complaining about the “tyranny” at the store and calling his supervisor a rude name.
The AGC also explained the NLRB’s rulings on a variety of social media policies. The following polices violated the NLRA because they were overbroad and could be construed to prohibit activity that would be protected under the Act:
● Policy prohibiting posting photographs of employees which depict the company or its logo;
● Policy prohibiting employees from disparaging the company or engaging in rude or inappropriate behavior;
● Policy prohibiting employees from using any social media that may compromise the privacy rights of any person or entity;
● Policy prohibiting posts that constitute embarrassment, harassment, or defamation of the employer or a co-employee;
● Policy prohibiting posts that might damage the reputation or goodwill of the employer or a co-employee;
● Policy prohibiting employees from posting anything that they would not want a manager to see; and
● Policy prohibiting disclosure of inappropriate or sensitive information about the employer.
The AGC implied that most of these policies could be made compliant with the Act through the careful use of limiting language, definitions, or other guidance narrowing the scope of the policies so that they could not reasonably be construed to prohibit activity protected under the Act. The last policy discussed in the AGC’s report provided that the employer’s public affairs office was responsible for all official external communications, employees were expected to maintain confidentiality about sensitive issues, and employees were directed to respond to all media questions by replying that they were not authorized to speak on behalf of the company. This policy complied with the NLRA because it was narrowly tailored to control official company statements without restricting employees from speaking out on their terms and conditions of employment.