NLRB "Pushing the Envelope" to Protect Employees' Rights to Communicate Online
Takeaway: Through its recent activities the current National Labor Relations Board (“NLRB”) has indicated its determination to make itself relevant to all U.S. employees (and employers), by focusing a less prominent part of its authority -- to insure that “Employees shall have the right . . . to engage in other concerted activities for the purpose of . . . mutual aid or protection.” Among the areas where this emphasis is being shown is the ability of employers to limit employees' use of social media networks such as Facebook to communicate with each other.
Section 7 of the U.S. National Labor Relations Act (“NLRA”) states,
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .U.S. Code, Title 29, Section 157.
This provision and the balance of the NLRA, which was enacted during the Great Depression of the 1930's, are primarily focused on the right to join a union and collectively bargain. As the percentage of U.S. private sector employees represented by unions has dropped substantially over recent decades, the NLRA has become a much less prominent part of the discussion of employment-related legal matters.
However, through its recent activities the current National Labor Relations Board (“NLRB”) has indicated its determination to make the NLRA relevant to all U.S. employees (and employers), by focusing on the last part of the quoted portion of Section 7, “Employees shall have the right . . . to engage in other concerted activities for the purpose of . . . mutual aid or protection.”
Among the areas where this emphasis is being shown is the ability of employers to limit employees' use of social media networks such as Facebook. The “social media policies” area is particularly interesting because many (if not most) of employees' online posts relating to their employers cannot be construed as “concerted activities for the purpose of mutual aid or protection.” Nevertheless, the NLRB has authority to stop an employer from maintaining a “work rule” that if that rule “would reasonably tend to” discourage employees from communicating with other employees “for the purpose of mutual aid or protection.” If the “social media policy” does not clearly restrict protected activities, such as by forbidding employees to “friend” each other on Facebook or to write posts about wages, hours or working conditions, then the policy only violates the NLRA if: “(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.”
In several cases, the NLRB has found that an employer's social media policy has in fact been applied to restrict the exercise of Section 7 rights, and required the employer to reinstate employees terminated due to their Facebook postings and subsequent responses by Facebook friends. For example, after an employee of a collections agency was transferred to a different position that would substantially limit her earning capacity, she posted on her Facebook page that her employer had “messed up” (using expletives) and that she was “done with being a good employee.” The employee was Facebook friends with approximately 10 current and former coworkers, including her direct supervisor. An extensive exchange ensued among the coworkers regarding the employer's management methods and preference for cheap labor, culminating with one of the former employees calling for a class action among the disaffected workers.
The employee who had prompted the exchange was fired the next work day explicitly because of her Facebook posts and the responses they triggered. The NLRB found the discharge to be a violation of the NLRA because (a) the employer had an unlawfully broad “non-disparagement policy,” the violation of which was the basis for the termination, and (b) the employee had been fired for “engaging in conduct that implicates the concerns underlying Section 7 of the Act.”
In other recent cases brought before it, the NLRB has concluded that, while the complaining former employee was not unlawfully discharged due to his or her online postings, the employer's policy itself violated the NLRA and needed to be modified. In response to this, the NLRB recently issued a report summarizing its decisions specifically on acceptable social media policies, and perhaps most importantly, has in essence provided a sample policy that it has deemed to be lawful. The policy, as amended by Wal-Mart after the initiation of an NLRB complaint regarding its prior policy, focuses fairly narrowly on refraining from posts that “include discriminatory remarks, harassment and threats of violence” or are “meant to intentionally harm someone's reputation.” While the policy forbids dissemination of the company's confidential information, it provides a sufficient specific definition of “trade secrets” to put employees on notice that the policy (probably) does not include internal reports or procedures specifically touching on conditions of employment. Perhaps most importantly, the policy expressly acknowledges that employees may post work-related complaints and criticism, even while discounting the possibility that such posts are likely to result in changes that the employee seeks.
If your company has a social media policy, we can review it for purposes of conforming it to the NLRB's latest guidance on acceptable policies and help you avoid future problems that could result from overly broad restrictions on employee's online conduct. Of course, as specific situations arise we are available to counsel you as to legally appropriate measures to take in response to employee's online conduct.