SOCIAL MEDIA POLICY - Hmmm, does it matter?

Acting General Counsel of the National Labor Relations Board addressed the impact of social media, and has addressed several cases across the country. This summary was taken from the National Labor Relations Board Management Memorandum found at:

https://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report.

The gist so far is that: Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Here is a summary of one case:

The Employee was Facebook “friends" with approximately 10 coworkers, including her direct supervisor when she made griping comments on FB about her employer moving her to another position which pays less. One coworker indicated she was “right behind" the Employee and was also angry. Another coworker made a similar comment. Several former employees also posted, with one of them commenting that only bad behavior gets rewarded, and that honesty, integrity, and commitment are a foreign language to them. This coworker also wrote that the Employer would rather pay the $9 an hour people and get rid of higher paid, smarter people. The Employee responded and indicated that the Employer could keep the $9 an hour people who would get the Employer sued. When the Employee returned to work, she was told that she was being terminated due to her comments on Facebook, and the Employer showed her a copy of her Facebook wall from October 8.

An employer violates Section 8(a)(1) through the maintenance of a work rule if that rule “would reasonably tend to chill employees in the exercise of their Section 7rights." Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). The Board uses a two step inquiry to determine if a work rule would have such an effect. Lutheran Heritage Village–Livonia, 343 NLRB 646, 647 (2004). First, a rule is clearly unlawful if it explicitly restricts Section 7 protected activities. If the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that:(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

The Employer’s rule prohibited “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media."The NLRB concluded that this rule was unlawful because it would reasonably be construed to restrict Section 7 activity, such as statements that the Employer is, for example, not treating employees fairly or paying them sufficiently. Further, the rule contained no limiting language that would clarify to employees that the rule does not restrict Section 7 rights.

The NLRB also considered the employer’s discharge of the Employee. In the Meyers cases, the Board explained that an activity is concerted when an employee acts “with or on the authority of other employees and not solely by and on behalf of the employee himself." Meyers Industries (Meyers I), 268 NLRB 493, 497 (1984), revd. sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985),cert. denied 474 U.S. 948 (1985), on remand Meyers Industries (Meyers II), 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). The definition of concerted activity “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action." Meyers II, 281 NLRB at 887. The Employee here initiated the Facebook discussion because the Employer transferred her to a less lucrative position.

In response, coworkers and former coworkers responded. Some of the comments echoed the Employee’s frustrations with the Employer’s treatment of employees, and one former coworker suggested taking concerted activity through the filing of a class action lawsuit. Thus, the Charging Party’s initial Facebook statement, and the discussion it generated, clearly involved complaints about working conditions and the Employer’s treatment of its employees and clearly fell within the Board’s definition of concerted activity, which encompasses employee initiation of group action through the discussion of complaints with fellow employees. NLRB concluded that the Employer unlawfully terminated the Charging Party in response to her protected activity. Here, as an initial matter, there is no dispute that the Employer knew about the Charging Party’s Facebook statements and that it terminated the Charging Party in response to those statements because the Employer specifically cited them to the Charging Party as the reason for her discharge. Further, the evidence supports the conclusion that the Employer discharged the Employee specifically as a result of the protected nature of her posts, i.e., because they were fomenting additional discussion among employees about workplace problems. We found that the Employer unlawfully terminated the Charging Party in retaliation for her protected future concerted activity.

Finally, the NLRB concluded that the Employer’s discharge of the Employee also violated Section 8(a)(1) because it was made pursuant to its unlawfully overbroad non-disparagement rule. The Board recently held that “discipline imposed pursuant to an unlawfully overbroad rule violates the Act in those situations in which an employee violated the rule by (1) engaging in protected conduct or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the Act." The Continental Group, Inc., 357 NLRB No. 39, slip op. at 4 (2011). An employer will not be liable for discipline imposed pursuant to an overbroad rule if it can establish that the employee’s conduct actually interfered with the employee’s own work or that of other employees or otherwise actually interfered with the employer’s operations, and that the interference was the reason for the discipline. Here, the evidence demonstrates that the Employer discharged the Employee pursuant to its unlawfully overbroad rule. Finally, we found no evidence that the Employee’s conduct interfered with her work or that of other employees.

Discharge for Facebook comments was lawful, but social media policy and no-solicitation rule were overly broad.

What do you think? Let us know your thoughts?

Gladys Wiles Snyder & Wiles, PC 7731 Main Street Fogelsville, PA 18051 610-391-9500