The NLRB Takes On Social Media

June 03, 2011

The National Labor Relations Board (NLRB) has been tackling the issue of when the use of social media constitutes “concerted activity” by employees and when that concerted activity is protected under the National Labor Relations Act (NLRA). In April 2011, an NLRB associate general counsel concluded that an employee’s sarcastic “tweets” were not protected concerted activity. In May 2011, the NLRB announced that it was suing two different employers for terminating employees based on their personal Facebook postings, which the NLRB deemed to be protected concerted activity.

Section 7 of the NLRA protects employees who engage in “concerted activity” regarding their “mutual aid and protection.” This has been interpreted to mean that an employee’s actions to raise and discuss concerns about the terms and conditions of employment or to seek to involve other employees in employment issues is protected by Section 7. Whether an employee’s actions constitute protected concerted activity, however, can sometimes be difficult to determine.

Inappropriate and Offensive Tweets Were Unprotected

A reporter with the Arizona Daily Star was terminated because of messages he had posted on Twitter. In early 2010, in reference to punning headlines, the reporter tweeted that some of his colleagues “are the most witty and creative people in the world. Or at least they think they are.” The reporter was told by his managers that he was prohibited from airing grievances or commenting about the Daily Star in any public forum. He continued tweeting about matters related to his beat as a public safety reporter, including a number of sarcastic tweets about city homicides. He was then instructed to refrain from tweeting about anything work related. The reporter also posted a tweet in which he mocked a local television station for a misspelling, stating “Stupid TV people.” A station producer who found the tweet unprofessional contacted the Daily Star. The reporter was suspended and then subsequently terminated for his tweeting activity, which the Daily Star believed to be drawing negative attention to the newspaper.

In an Advice Memorandum responding to the reporter’s NLRB charge that he was terminated in violation of the NLRA, the NLRB’s associate general counsel concluded that the reporter “was terminated for writing inappropriate and offensive Twitter postings that did not involve protected concerted activity” because such tweets were not related to the terms and conditions of his employment. The associate general counsel noted, however, that the employer made statements that could be interpreted to prohibit protected Section 7 activities. Specifically, the associate general counsel referenced the instructions to the reporter to refrain from airing his grievances or commenting about the paper in any public forum, and to stop tweeting about anything work-related. The associate general counsel noted that these statements, which occurred in the context of discipline of the reporter, were not general rules. Moreover, the associate general counsel noted that, “although the statements arguably constituted unlawful restrictions on the [reporter’s] own Section 7 activities, it would not effectuate the purposes and policies of the [NLRA] to issue a complaint where the statements were directed to a single employee who was lawfully discharged.”

Facebook Postings May Be Protected

The NLRB issued a press release on May 18, 2011, announcing that it had issued a complaint against a social services non-profit organization for terminating five employees based on their Facebook postings. The NLRB stated that, prior to a meeting with management to discuss working conditions, an employee posted to her Facebook page a coworker’s allegation that employees were not doing enough to help the organization’s clients. Other employees responded to the posting by defending their work performance and criticizing working conditions, including staffing and workload. The five employees participating in the Facebook discussion were then terminated, on the grounds that their postings harassed the employee referenced in the initial posting. The NLRB asserts that the Facebook discussion constitutes protected concerted activity because it involved the terms and conditions of employment, including staffing levels and job performance.

On May 24, 2011, the NLRB announced in another press release that it had issued a complaint against a car dealership for terminating a sales employee because of Facebook posts that were critical of the dealership. According to the NLRB, the employee and other sales co-workers were unhappy that only hotdogs and bottled water were being offered to customers at a dealership event introducing a new BMW model. The sales employees believed that their commissions could suffer as a result. The employee then posted photos and commentary on his Facebook account, to which other employees had access, that were critical of the food served at the event. The NLRB considers his subsequent termination to be a violation of Section 7, because his posting involved discussion among employees regarding the terms and conditions of employment, thereby constituting protected concerted activity.

Both of these cases will proceed to hearing unless they are settled, like the October 27, 2010 complaint that the NLRB issued against an ambulance service for terminating an employee who posted negative comments on her Facebook page about her supervisor and responded to further comments by her co-workers, as we discussed in our February E-Update. In its press release regarding the settlement, the NLRB stated that the employer had agreed to amend its overbroad social media policies to permit employees to discuss working conditions with co-workers. The employer also agreed not to discipline or discharge employees who engaged in such discussions.

Practical Impact

As we suggested in our February E-Update, employers should carefully draft social media policies so as to avoid an overly broad reach, which the NLRB is challenging. In addition, before taking disciplinary action against employees for social media activities, employers must consider the content of the employee’s commentary, and whether other employees are involved in any discussion. If the discussion is related to the workplace, it is likely to be considered to be protected by Section 7 by the NLRB.

Article courtersy of Worklaw® Network Member firm Shawe Rosenthal (www.shawe.com).

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