As we start the year 2012, perhaps the most hotly debated protected speech issue concerns the rights of employees to post perceived disparaging comments about their employers on social media websites such as Facebook and Twitter. As this is still a developing area of labor law, as of the time of the writing of this article the National Labor Relations Board (“NLRB”) has not yet handed down any precedential decisions on this issue.
As with all other areas concerning protected speech issues, the threshold question in social media postings is whether the employee is engaged in concerted activity. If not, the postings will not be found to be a form of protected speech by the NLRB.
The test for concerted activity under the National Labor Relations Act (“NLRA”) is whether 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) (1984) 268 NLRB 493; Meyers Industries (Meyers II) (1986) 281 NLRB 882. If concerted activity is found, then the question of whether the speech is protected is determined by the 3 factors announced by the U.S. Supreme Court in NLRB v. Local Union No. 1229, IBEW (Jefferson Standard Broadcasting) (1953) 346 U.S. 464: (1) does the speech occur in the context of an ongoing labor dispute; (2) is it related to that dispute; and (3) is it determined to not be egregiously disloyal, reckless or maliciously untrue.
HISPANICS UNITED OF BUFFALO DECISION
In September 2011, in the case of Hispanics United of Buffalo, Inc., Case No. 3-CA-27872, an NLRB Administrative Law Judge issued the first decision concerning the protected nature of social media postings under the NLRA. As this is only an ALJ decision that has not yet been reviewed by the full Board, it is not considered precedent, but the findings and analysis are useful in helping to predict how the Board may ultimately decide these cases.
In Hispanics United, 5 employees of a private non-profit social services agency engaged in an exchange on Facebook concerning criticisms made of them by another non-management employee. Management then fired all 5 employees on the grounds that their postings constituted bullying and harassment of the subject employee. The ALJ found that the employees’ postings were protected speech and therefore they had not engaged in any misconduct.
On the issue of protected speech, the ALJ found the employees were engaged in concerted activity: “Individual action is concerted as long as it is engaged in with the object of inducing group action. The object of inducing group action need not be express.” Further, the ALJ found that the employees’ Facebook communications with each other in reaction to the co-worker’s criticisms were protected and that it was “irrelevant . . . that the (workers) were not trying to change their working conditions and that they did not communicate their concerns to (the employer).”
The ALJ then found that the employees had not engaged in any misconduct. In doing so, the ALJ relied on the decision from Atlantic Steel Co. (1979) 245 NLRB 814 that sets forth the factors used to determine if an employee engaged in misconduct during the course of otherwise protected activity. Those factors are: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
In applying these factors in Hispanics United, the ALJ determined that the employees actions were protected on the basis that: (1) the “discussion”: the Facebook posts were not made at work and not made during working hours; (2) the “subject matter”: the Facebook posts were related to a coworker’s criticisms of employee job performance, a matter the employees had a protected right to discuss; (3) there were no “outbursts”: none of the employees criticized the employer; and (4) “provocation”: while the Facebook comments were not provoked by the employer, this factor was found irrelevant to the instant case.
As a result of his decision, the ALJ ordered that the fired employees should be reinstated to their positions. This decision has been appealed to the full Board which currently has it under review. The Board’s decision will most likely be issued sometime in late 2012.
WHERE SOCIAL MEDIA POSTINGS MAY BE FOUND UNPROTECTED
As of January 2012, the NLRB General Counsel’s office has reviewed a number of cases that have been filed by employees contesting their terminations from employment as a result of posting complaints about their workplaces on social media sites. The General Counsel has tended to find that social media postings are not protected where the content reflects a single individual’s griping or complaints not related to any concerted group activity. Examples of findings of such unprotected activity include:
EMPLOYER SOCIAL MEDIA POLICIES
As a direct result of concerns stemming from employees’ use of social media websites, a large number of employers are adopting policies affecting, restricting or regulating in some form employees’ use of social media and blogging. The NLRB has reviewed many of these policies using standards the Board created in earlier decisions concerning the legality of work rules promulgated by employers.
The test for lawfulness of employer social media policies is primarily based on these decisions :
Lafayette Park Hotel (1988) 326 NLRB 824: In this case, the NLRB held that an employer violates Section 8(a)(1) of the NLRA through the maintenance of a work rule if that rule would “reasonably tend to chill employees in the exercise of their Section 7 rights.”
Lutheran Heritage Village–Livonia (2004) 343 NLRB 646: In this case, the NLRB found that a two-step inquiry should be used to determine if a work rule would have a chilling effect. First, a rule is unlawful if it explicitly restricts protected employee activities per Section 7 of the NLRA. Second, if the rule does not explicitly restrict protected activities, it is unlawful only 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.
Based on these cases, the General Counsel has determined the following social media policies to be unlawful:
PRECAUTIONS TO TAKE