What Did You Say? – Social Media And The NLRB

The website Wikipedia defines social media as “media for social interaction, using highly accessible and scalable communication techniques.” Key to social media is “the use of web-based and mobile technologies to turn communication into interactive dialogue.” Social media has a natural tendency to allow the user to connect with multitudes of users and provide each of those users the ability to instantly respond to both the original author and those undefined multitudes. Social media offers the power to connect and influence in ways never before possible.

Many employers have decided to address the use of social media by their employees. Questions include whether to promote its use, discourage its use, and/or limit its use. And, the Acting General Counsel for the National Labor Relations Board (NLRB) clearly intends to broadly protect employee use of social media to discuss workplace issues. While at this point there are likely more questions than answers, in this article we will provide what guidance we have from the NLRB and attempt to design a roadmap for employer action based on those rules and implications drawn from enforcement efforts by the Acting General Counsel.

Legal Issues

The current NLRB is concerned not only with maintaining the traditional balance of employee and employer rights but also with, in its view, zealously guarding employee rights to band together to address employment concerns. And, as evidenced by actions such as the decision of the Acting General Counsel to issue a complaint against Boeing for creating an additional manufacturing facility in South Carolina, the NLRB is not hesitating to act when it feels organized labor is threatened by employer actions. In the case of social media, the NLRB’s primary areas of concern are “protected concerted activity” and “surveillance” of such employee activity.

Protected Concerted Activity
Section 7 of the National Labor Relations Act protects employees who engage in union organizing activity, but also “other concerted activities” for the purpose of collective bargaining or “mutual aid or protection.” Complaints about management and conversations regarding wages, hours, and working conditions can be protected. However, guidance on the subject of what speech and action is protected has been, at best, confusing and, at worst, conflicting. For example, the NLRB has reviewed employee statements and actions and found them to be protected even when they reveal confidential information, yet found a rule prohibiting “slanderous or detrimental statements” to be lawful.

The definition of “concerted” has been tortured from the common-sense definition of “two or more” to include employee activity:

• “Engaged with or on the behalf of other employees”;
• One employee bringing a group concern to management; and
• Individual action “seeking to initiate group action” or “with a purpose of furthering group goals.”

Outside of the social media context, NLRB regional offices have concluded that: (1) an employee who highlighted and posted changes to a vacation policy on the employer’s bulletin boards did engage in protected concerted activity; (2) an employee who complained during a department meeting about her pay did not engage in protected concerted activity; and (3) an employee who complained loudly to her manager and to co-workers about the impact on her of a change in the schedule was engaged in protected concerted activity.

Posts On Social Media
Not surprisingly, the NLRB has continued to send mixed messages when applying the protected concerted activity standards in the social media context, challenging employers to carefully provide guidance to employees regarding expectations about behavior while not running afoul of the NLRB’s interpretation of protected concerted activity. One thing is clear, however: the current NLRB is likely to apply an expansive definition of the term. For example, the following actions will likely be considered concerted and/or protected activity:

• A blog or post to which others can reply;
• Critical comments posted on a social media site;
• An employee calling a supervisor “psychotic”; and
• Posted employee complaints regarding staffing levels and working conditions.

On the other hand, the Office of Advice of the General Counsel recently found that a newspaper reporter who posted derogatory comments regarding a television news competitor and repeatedly posted tweets that were considered in poor taste by the employer engaged in conduct which was neither concerted nor protected. The employer had set out specific examples of unacceptable behavior and the Office of Advice recommended dismissal of the charge despite clear evidence that the employer made statements that could be interpreted to prohibit Section 7 activities, such as directing the employee to “stop airing his grievances or commenting about the Employer in any public forum.”

Activity Not Protected
Activity can be so extreme that it loses the protection of Section 7, even if it is concerted and even if it deals with terms and conditions of employment. Such conduct typically involves unlawful or violent acts, such as defamation, theft, battery, assault, or discriminatory conduct or statements. The current NLRB would likely find conduct involving mere disparagement, simple profanity, rudeness, and shouting to be protected.

Surveillance
Employers also must be mindful that it is arguably unlawful to engage in surveillance of Section 7 protected employee activities, including protected concerted activity, or to create the impression of surveillance. While an employer’s review of a post in the public domain does not likely constitute “surveillance,” the current General Counsel would likely challenge as unlawful a comment to an employee about the employer’s review of the post. More clearly, an employer must honor password protection, should not use a password voluntarily provided by one with legitimate access, and cannot ask another employee to monitor posts on its behalf. An employer may review posts provided to it by another employee.

Policy Guidelines

There are a number of factors critical to the legality of a social media policy:

Timing Of The Policy
As an initial matter, the NLRB will look to whether the policy was created in advance of or in response to union organizing activity or other protected concerted activity.

Application Of The Policy To Discipline An Employee
Although the NLRB has taken the position that a policy can be unlawful on its face, the NLRB has used the imposition of discipline as an added indicator that a policy is unlawful.

Other Violations
An employer found to have engaged in other unlawful conduct is more likely to have its social media policy found to be unlawful.

Does The Policy “Reasonably Tend To Chill Employees” From Exercising Their Section 7 Rights?
A review of non-precedential guidelines issued by the General Counsel’s office and the General Counsel’s decisions to issue complaints in several recent cases, lead to the following guidelines to determine whether a policy will be found to “reasonably tend to chill employees” from exercising their rights:

• Disparaging remarks, critical statements or complaints cannot be prohibited;
• Product disparagement can be limited, but comments generally critical of the company or management cannot;
• Policies cannot simply prohibit negativity or negative comments;
• Unlawful harassment can be prohibited, but some impulsive behavior, including some profanity, must be tolerated;
• Rules that employees must follow the “chain of command” cannot be enforced in the social media context;
• Employers cannot prohibit employees from identifying themselves as an employee of the company (in fact, the FTC requires identification as an employee of the company when endorsing the company’s product);
• The disclosure of confidential information obtained without permission can be prohibited;
• Trade secrets can be protected from disclosure;
• Copyrights can be protected;
• Defamation can be prohibited;
• Discriminatory statements can be prohibited;
• “Maliciously false” statements can be prohibited, but merely “false” statements cannot; and
• Mentally or physically abusive statements/conduct can be prohibited.

Disclaimers

An employer also must consider whether to include a disclaimer intended to minimize the potential for an employee to believe that protected concerted activity is restricted by the employer’s policy. This is primarily a matter of risk tolerance. Employers should consider the following policy options, providing minimum to maximum protection:

• “This policy is not intended to interfere in any way with any applicable federal, state or local law”;
• “Application of this policy will be consistent with the National Labor Relations Act”;
• “This policy will not be interpreted or enforced in a manner that would interfere with employees’ rights to discuss work related issues with one another”; or
• “This policy is not intended to interfere with employee rights to form, join or assist unions or to engage in other concerted activity protected by the National Labor Relations Act.”

Recommendations

The NLRB’s approach to employer regulation of employee participation in social media is evolving quickly. Employers should carefully consider their objectives for social media policies and draft their policies to address those concerns. It is tempting to pull down a social media policy from the Internet and be able to say “done” with this task. However, there is obviously more to it than a copy and paste exercise.

Employers should first ask “what is it that we seek to promote, what is it that we seek to limit, and why do we want to limit it?” The development of an effective and sustainable social media policy depends not only on the legal boundaries, but also the business objectives of the organization. And, the reality is that employers must be prepared to accept some public statements it would prefer not be made.

The more a policy is crafted to protect an employer’s legitimate business interests, the more likely it is to (1) be a useful tool and guide to employees, and (2) survive legal review. Once implemented, the policy should be carefully monitored to ensure that it remains consistent with the organization’s objectives and in line with the NLRB’s most recent pronouncements.

The Obama NLRB and its venture into the social media arena will be discussed in detail at this year’s Not Your Father’s NLRB seminar, which will be held on October 27-28 at the InterContinental New Orleans. The program is sponsored by Help Center Seminars and features several speakers from Ogletree Deakins. Attendees will receive information from Washington “insiders” and experienced practitioners about the latest NLRB initiatives, decisions and directions. For a detailed agenda and registration information, see the enclosed brochure or visit www.helpcenterseminars.com.

Note: This article was published in the July/August 2011 issue of The Employment Law Authority.