Editor’s Note: Kyle R. Still is a member of the Labor and Employment Practice Group of Ward and Smith, P.A.

Picture the following scenario: your company is having a soiree for some of its most important clients in order to display a brand new product line. You are responsible for organizing the function, and you know that your company is encouraging its clients to bring their children with them to the event. In order to promote this family-friendly environment, you arrange for a local warehouse club to provide hamburgers, hot dogs, potato chips, and similar food items. Some of your salespeople object to your approach to the event, feeling that the inexpensive food will give clients a negative impression of the company and affect their opportunities for commissions.

When the event was over, however, you felt it was a success. Furthermore, several people, including some important clients and the owner of your company, went out of their way to tell you that the event was outstanding. Feeling pretty good about yourself after a long day of work, you log into Facebook® to relax and check in with your friends. Much to your dismay, however, your find that one of your salespeople has posted photos of the event on the salesperson’s Facebook® page and made negative comments about the quality of the food provided. For example, one photograph displaying the hot dog stand noted that the “hot dogs were overcooked and the buns were stale….I’m sure our clients loved that!” Furthermore, your salesperson made negative comments about you and other supervisors of your company, stating that “the scumbag managers never listen to us in sales!”

Incensed, you send a link to the salesperson’s Facebook® posts to the owner of your company, noting that many of the same clients at the event have access to Facebook® and could see the comments. After seeing the offensive posts, your owner fires the salesperson for the offensive Facebook® comments. Months later, however, your owner gets a notice in the mail, stating that the National Labor Relations Board (“NLRB”) is investigating whether your company fired this employee for engaging in protected concerted activity.

Protection for Concerted Activity under the National Labor Relations Act

The NLRB is tasked with enforcing the National Labor Relations Act (“NLRA”). The NLRA primarily affects employers with unionized workforces because it governs issues related to collective bargaining and unionization. As the owner of our hypothetical company will soon find out, however, the NLRA authorizes the NLRB to regulate non-unionized companies in one very important area.

Section 7 of the NLRA gives employees the right to discuss their wages, working conditions, hours, and other terms of employment with not only their coworkers, but also the general public. This right protects the employees of all companies subject to the NLRA, regardless of whether the workforce is unionized. In the past, employees’ comments about the terms and conditions of their employment may have been limited to the proverbial water cooler chat sessions and thus unlikely to reach a mass audience. With the advent of social media websites like Twitter® and Facebook®, however, anyone with computer access has a platform to air any dissatisfaction about an employer. Such comments have the possibility of portraying the company in a negative light and potentially affect its bottom line.

The NLRB’s Social Media Reports

Recognizing that many employers may be unfamiliar with their obligations under Section 7 of the NLRA with regard to social media, the NLRB has released two extensive reports (“Reports”) to the general public. The first Report was issued in August of 2011 and the second was released in January of this year. Both Reports describe the facts of cases in which the NLRB investigated either:

● A termination based on an employee’s social media comments;
● An employer’s unlawfully broad personnel policy regulating employees’ use of social media; or,
● Both.

With regard to terminations, the Reports show that the NLRB makes a distinction between employees who are actually and substantively commenting on the terms and conditions of their employment and those employees who are merely griping about their jobs. The line between the two, however, sometimes can be difficult to locate. For example, the majority of the facts regarding our hypothetical picnic were drawn directly from cases described in the Reports in which the NLRB found protected use of social media by employees. Because our hypothetical salesperson engaged in Facebook® activity in part to protest the commissions the company’s salespeople would receive as a result of the event, the company’s termination under these circumstances would likely be an illegal violation of Section 7 of the NLRA, despite the fact that the salesperson called many of the company’s supervisors “scumbags.”

On the other side of the difficult to locate line is insubstantial griping, which is not protected by Section 7. For example, the NLRB’s January Report discusses a case in which a bartender posted on Facebook® that a new bartender was “screwing over” customers by using a mix in alcoholic beverages rather than premium liquor. The complaining bartender stated that she was concerned about the new bartender’s behavior because she feared that if customers found out, she might lose business or receive lower tips. Other employees discussed the new bartender with her and, although they had concerns about the new employee, they did not share her concern regarding his use of a mix in beverages. Eventually, the complaining bartender was fired, specifically for using unprofessional communications on Facebook® to contact fellow employees.
The NLRB determined that the bartender’s Facebook® postings regarding her fellow bartender’s practices “had only a very attenuated connection with terms and conditions of employment.” She did not “reasonably fear that her failure to publicize her coworker’s dishonesty could lead to her own termination.” Furthermore, although she later stated that she was worried that her coworker’s practices would affect her wages, she did not state this in her post. As a result, the NLRB found the bartender’s Facebook® postings to be mere griping, not protected activity.

The Reports also indicate how broad a company’s social media policies can be. It is clear that the NLRB will strike down any policy that can be reasonably construed by employees as restricting their activity under Section 7 of the NLRA. For example, the NLRB has objected to policies that prohibit disparaging, confrontational, harsh, or even inappropriate speech at work, because it believes that an employee could reasonably interpret such policies as prohibiting discussions regarding wages, working conditions, and other terms and conditions of employment.

Similarly, the NLRB has regularly struck down policies prohibiting the disclosure of “confidential information,” on the basis that information regarding wages, hours, or other working conditions could be incorrectly interpreted to be confidential. In order for such a policy to be enforceable, it has to explicitly exempt discussions regarding these terms and conditions.

Finally, the NLRB makes it is clear that a disclaimer stating that nothing in a company’s policy should be construed to limit employees’ rights under Section 7 will not be sufficient to redeem an otherwise offensive policy. The NLRB wants companies to inform employees that they have the right to use social media to discuss the terms and conditions of their employment. In fact, the NLRB has expressed a willingness to give employees greater leeway in this arena than the typical water cooler situation because, rightly or wrongly, it feels that employees’ comments about employers on social media sites will have less impact on companies’ actual day-to-day activities.

Conclusion

As evidenced by its two comprehensive Reports on the issue, the NLRB is actively enforcing employees’ Section 7 rights in the context of social media. Because the NLRA is applicable to nearly all employers in the United States, it is important for companies of all sizes to review their obligations in this area and to update their personnel policies to conform to the NLRB’s most recent directives.

© 2012, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Kyle R. Still practices in the Labor and Employment Practice Group where he represents clients in a wide range of employment litigation, regulatory, and legislative matters. Comments or questions may be sent to ks@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.