PROTECTED SPEECH AND THE RIGHTS OF PRIVATE SECTOR EMPLOYEES: SOCIAL MEDIA POSTINGS: ARE THEY PROTECTED SPEECH?

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 882If 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:

 

  • Personal attacks on managers
  • No evidence that person making the post had previously discussed concerns with co-workers
  • Co-workers not responding to postings thus showing absence of concerted activity
  • Posting does not relate to terms and conditions of employment
  • Postings commenting solely on the clients or customers of employer without reference to any practices of the employer

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:

 

  • Employees prohibited from posting pictures of themselves in any media, including the internet, which depict the company in any way, including a company uniform or corporate logo.
  •  Employees prohibited from making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors.
  • Policy stating that employees are subject to discipline for engaging in “inappropriate discussions” about the company, management, and/or coworkers where policy did not define what was encompassed by the broad term “inappropriate discussions” by specific examples or limit it in any way that would exclude Section 7 activity.
  • Prohibiting employees from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity; prohibiting any communication or post that constitutes embarrassment, harassment or defamation of the employer or any co-employee; prohibiting statements that lack truthfulness or that might damage the reputation or goodwill of the employer or its employees.  Policy found overbroad  and ill-defined.
  • Policy which stated that it was designed to protect the employer’s reputation and that it governed employee communications during both work and personal time: policy precluded employees from pressuring their coworkers to connect or communicate with them via social media; precluded employees from revealing, including through the use of photographs, personal information regarding coworkers, company clients, partners, or customers without their consent; precluded the use of the employer’s logos and photographs of the employer’s store, brand, or product, without written authorization.

PRECAUTIONS TO TAKE 

  •  Before publishing or engaging in any speech or communication concerning your workplace or conditions of employment, seek advice from your union or another trusted source such as a labor law attorney on whether it appears to be protected.
  • If you are publishing written remarks, review them carefully to make sure they comply with the laws on protected speech.
  • If you have made verbal comments, make an accurate contemporaneous record of what you have said.
  • If you believe your speech or communication may lead to a problem, inform your union immediately so that precautionary steps can be taken as soon as possible.
  • If you are questioned on speech issues by management, do not make any statements or agreed to be interviewed without asking your union for assistance.  If you are in a non-union workplace, consult with an attorney before speaking with management.
  •  Be cautious about posting any comments about the employer and work issues on social media sites.  If you do so, make sure it is in a context of protected concerted activity and on topics concerning terms and issues of employment that you have been discussing with co-employees.

 

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