Happy Holidays From The NLRB: Your Carefully Crafted Social Media Policy May Amount To A Per Se Violation Of The National Labor Relations Act

Set forth below is the article from one of our partners regarding the recent NLRB Complaint, stemming from a posting on Facebook.

Happy Holidays from the NLRB

Depending on the study cited, as many as:

• 79% of people in the U.S. age 18 and older were on-line in some fashion as of May 2010
• Of those on-line adults, 61% used social networking sites (up from 46% of on-line adults just last year)

Source: PEW Internet and American Life Project

• Approximately one-third of U.S. companies have a social media policy (other surveys report more than one-half their respondents have such policies)

Source: Manpower Social Media Survey, January 2010

• More than one-half of U.S. companies block access to social media sites from work

Source: Robert Half Social Media Monitoring Tools Survey, October 2009

• As many as 15% of U.S. companies have disciplined employees over social media issues
• 8% of U.S. companies have reported discharging someone over social media issues (up from 4% in the same survey in 2009)

Source: Proofpoint Outbound E-mail and Data Loss Prevention, 2010

The ease of use and dissemination, the spontaneity of communications, the perceived anonymity of on-line personas – in other words, all the things that likely attract people to social media – also present real challenges for employers. Whereas before, employers had to concern themselves only with the occasional improper e-mail that might be seen by a handful of individuals, Facebook posts, Twitter feeds, and other on-line content can quickly “go viral” and be seen by tens or hundreds or thousands of people. With the stakes raised, employers are growing increasingly vigilant and decreasingly tolerant of careless social media behavior. As a result, both corporate policies and the law are struggling to keep pace with the social media age.

The issues go beyond matters of urban legend – like the employee fired after referring to her boss as a “pervvy wanker” on her Facebook page, forgetting that her boss was one of her Facebook “friends”; or the Salt Lake City TV station employee who resigned after inadvertently tweeting, “I’m downtown eating. Surrounded by Mormons and repressed sexual energy,” to the station’s, rather than his own Twitter feed. Social media conduct can implicate significant privacy concerns (like HIPAA and common law invasion of privacy claims), violate FTC and SEC regulations, and provide a whole new forum for employees to engage in protected activity under the NLRA or create a hostile work environment under Title VII.

The challenges confronting employers have only been further complicated by an October 27, 2010, NLRB complaint alleging that an ambulance company’s social media policy contained “unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the Internet without company permission.” American Med. Response of Conn., NLRB Reg. 34, No. 34-CA-12576 (Oct. 27, 2010). The NLRB insisted that the employer’s policy unduly chilled the exercise by employees of their rights under Section 7 of the NLRA, which guarantees to employees – whether union or non-union – the right to engage in “other concerted activities for the purpose . . . other mutual aid or protection.”

The NLRB issued its complaint following an investigation of the firing of an employee who posted negative remarks about her supervisor on Facebook (suggesting he had a mental disorder) and then continued to post negative remarks after receiving replies of support from co-workers via Facebook. The NLRB alleged, essentially, that such spontaneous use of Facebook constitutes protected concerted activity under the NLRA and, further, that the employer’s policy against employees making disparaging remarks about the company or company supervisors or depicting the company name or logo without permission were overly broad and unlawful.

Chances are that, if your company has a social media policy, it probably contains language very similar to that which the NLRB apparently finds objectionable in this case. Does this mean you now need to spend your holiday busily revising such policies? Not yet. As is often the case, there is more to this story than gets reported in the headlines. Most notably, the incident prompting this union employee to vent her frustrations via Facebook was her belief that her employer had denied her union representation during what she understood to be a disciplinary meeting.

This was not quite a situation where an employee simply had a bad day with a supervisor and decided to express those frustrations by personally attacking her supervisor on-line. Chances are that such conduct would still provide a legitimate basis for discipline. In fact, just a year ago the NLRB issued an advice memo finding that an employer’s social media policy could not reasonably be construed as an unlawful limitation on Section 7 activity under the NLRA, where it prohibited “[d]isparagement of company’s . . . executive leadership, employees, [or] strategy” but did so in the context of a list of plainly egregious conduct, such as employee conversations involving the employer’s proprietary information, explicit sexual references, disparagement of race or religion, obscenity or profanity, and references to illegal drugs. NLRB OGC Advice Memo, Case 18-CA-19081 (Dec. 4, 2009). The NLRB Office of General Counsel concluded that this policy drew a sufficient distinction between egregiously inappropriate language and legitimately protected complaints about the employer or working conditions.

It will be interesting to see how the Board itself adjudicates this most recent Complaint, and it is important to recognize that certain social media conduct by employees may constitute legitimately protected activity under the NLRA. At this time, however, a wholesale rewriting of social media policies is probably still premature.

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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