Top Ten Implications of 2011 NLRB Activity on Social Media Use and Employee Rights

Source: Association of Corporate Counsel, Mary E. Windham, Labor & Employment attorney, Womble Carlyle Sandridge & Rice

Though the National Labor Relations Act has been around since the 1930s, its recent application to a relatively new sphere of activity, the virtual world of social media, has created a host of uncertainties.  Are employees’ posts about their workplaces and colleagues on Facebook, Twitter, and other social media protected speech, or the stuff that may rightfully subject employees to discipline for violation of company policy prohibiting disparagement, discrimination, or defamation?  Though the National Labor Relations Board (“NLRB”) has yet to issue a decision on social media policy, over the last nine months it has aggressively publicized complaints and settlements in connection with cases involving employer rules concerning social media use and employee discipline.  Employers – both unionized and non-unionized – should review their social media policies and enforcement practices.  In the midst of ongoing controversies and the continuing explosion of online social networks, employers should consider the following:

1.    Why Your Company Needs a Social Media Policy

Social Media includes a constantly changing number and variety of internet and otherwise interactive sites, software, and communications that allow users to communicate with each other.  Analysis of the social media demographic demonstrates clearly that nearly all demographic groups from nearly all regions of the world are already online in some form of social media, and their numbers are growing.  Regardless of what your company does, people are talking about it – good, bad, or indifferent.  Social media is becoming a mainstay in communications.  This can be used to an employer’s advantage by acknowledging this reality to employees and customers, and managing risks by making it clear to employees where lines are drawn between professional and personal use of the medium.  A social media policy, in simplest terms, is a company’s principles and guidelines for communicating online to the outside world.

2.     Whether Your Policy Implicitly or Explicitly Restricts Section 7 Rights

Recent complaints filed by the NLRB caught many employers by surprise, as less than two years ago the Board issued an advice memorandum opining that a social media policy prohibiting the use of social media for the purpose of “[d]isparagement of company’s or competitor’s products, services, executive leadership, employees, strategy, and business prospects” was lawful.  Applying the reasoning of the Board’s decision in an earlier case, the Board reaffirmed that a rule is unlawful if it “reasonably tends to chill employees in the exercise of their Section 7 rights.”  (Activity that constitutes concerted discussion about terms and conditions of employment is protected under Section 7 of the NLRA).  Because the rule at issue did not explicitly restrict activity protected by Section 7, and certain other conditions were not met, the Board upheld a rule prohibiting “abusive or profane language.”  However, in the first of a series of recent cases illustrating the Board’s priority to scrutinize social media policies, the Board issued a complaint against American Medical Response (“AMR”) alleging that AMR violated the NLRA by firing an employee for posting negative remarks about her supervisor on Facebook and by maintaining an overly broad social media policy that prohibited employees from making “disparaging, discriminatory, or defamatory comments” when discussing the Company or the employee’s supervisors, co-workers, and/or competitors.

The NLRB will continue to be active in this area.  In an April 12, 2011 Memorandum, the Board’s Acting General Counsel identified social media rules as a “policy priority” and instructed that all cases involving “employer rules prohibiting, or discipline of employees for engaging in, protected activity using social media, such as Facebook or Twitter” be submitted to the NLRB Division of Advice.  Employers should recognize that the Board now defines “protected concerted activity” broadly with Section 7 protections applying to workers regardless of union status.  Employers may expect close scrutiny of social media policies when those policies are announced or enforced, and should continue to watch developments in this area.

3.    Whether Your Policy Contains an Adequate NLRA Disclaimer

According to the Regional Director responsible for filing the AMR Facebook lawsuit, a disclaimer will be considered when evaluating whether an employer’s social media policy violates the NLRA.  A simple disclaimer might state that the policy is not intended to interfere with employees’ rights under the NLRA and will not be applied in that fashion.  The disclaimer should become more specific as a policy becomes broader so as to clarify that general rules do not apply to discussions or activities involving the terms and conditions of employment.  Disclaimers are of particular import if social media policies may be construed to limit employees’ ability to communicate while using the employee’s own resources during non-working hours.

4.    Whether Your Policy States and Serves Legitimate Purposes

The legitimate business purposes of social media policies in protecting both employers and employees may be demonstrated by rules of use on company time, obligations to comply with company policy and applicable law prohibiting workplace harassment and discrimination, and clarification of content ownership, monitoring, and enforcement.

5.    Whether Your Policy Contains Overbroad or Ambiguous Language

Social media policies should not categorically restrict employees from using social media, or from discussing their wages, hours, and working conditions.

6.    Whether Your Policy Is Enforced Consistently

As with all employment policies, social media policies should be enforced consistently.  Uneven enforcement, like the promulgation of a rule in response to union activity, may suggest that the policy serves to restrict Section 7 rights implicitly if not explicitly.

7.     Yes, You May Discipline Employees Who Abuse Social Media

Despite its recent track record, this past April the NLRB concluded that it would not file a complaint against a newspaper that fired a reporter for failing to adhere to the organization’s expectations of professional courtesy and conduct.  The reporter set up a Twitter account, identified himself by occupation, and made disparaging remarks about his Arizona Daily Star colleagues.  Thereafter, his employer instructed him that he was prohibited from airing his grievances about his coworkers or commenting about the paper in any public forum.  At this point, he elected to post a number of other tweets about homicide in Tucson (suggesting that all have a good “Homicide Friday,” for example, and rooting for “daily death”) along with sharp criticisms of other journalists.  The NLRB found that the reporter’s outbursts did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.

The take-away?  In many of the high-profile cases the NLRB has pursued the Board has focused on the fact that other employees joined in the critical postings or comments.  Where an employee engages individually in offensive or injurious speech the NLRB is less likely to construe the communications as protected activity regarding working conditions.

8.    Periodically Assess Your Policy and Update at Least Annually

As with all employment policies, a social media policy should be reviewed regularly.  Updating a social media policy at least annually is of particular importance given the high priority the NLRB has assigned to this topic.  Also, the law in this area is in an unsettled state.  Advice Memoranda issued by the Division of Advice within the General Counsel’s office of the NLRB are not considered to be an adjudication by the Board, and future cases may clarify issues unique to the application of Section 7 to social media communications.

9.     Discuss Policy with Employees and Obtain Written Acknowledgment At Every Review

Employers should oversee the implementation of the social media policy to ensure that the policy accomplishes the goals for which it is intended.  Training should be provided as necessary to ensure that those implementing and enforcing the policy have appropriate knowledge and skill.  Written acknowledgment serves to confirm employees’ receipt and understanding of the policy.

10.    Review Employers’ Use of Social Media in the Hiring Process

Social media has changed the hiring landscape in significant ways, and hiring decisions – not just termination decisions – may result in scrutiny of the employer’s own use of social media.  An employer in the possession of information about applicants’ or employees’ protected characteristics may face the challenge of establishing that employment decisions were made without regard for that information.  The concerns of the Equal Opportunity Employment Commission (“EEOC”) in this regard are reflected in recent regulations implementing GINA (the federal Genetic Information and Nondiscrimination Act).  Employers should implement clear procedures for social media use in screening job applicants.  A structured process with a division of duties between human resources professionals trained in the use of social media and managers making employment decisions offers one means of risk reduction.