Recently, the National Labor Relations Board (NLRB) has increased its focus on social media communications, and especially on those postings that include discussion regarding the terms and conditions of employment. The issues most commonly raised in cases before the NLRB have alleged that: (1) an employer has overbroad policies that restrict employees’ use of social media; or (2) that an employer unlawfully discharged or disciplined one or more employees over contents of social media postings. Based upon the Board’s increased focus on these issues, employers are reviewing and revising existing social media policies in an attempt to fully understand how this area of the law is evolving.
While there has been a rash of cases in which employers have been criticized for restrictions related to employees’ social media use, three recent memoranda to NLRB regional offices from the Board’s Office of the General Counsel (OGC) indicate that the Board is not imposing a blanket prohibition on discipline related to social media postings by employees.
On July 7, 2011, the OGC responded to a query as to whether an employer unlawfully discharged an employee/bartender for posting a Facebook message that referenced the employer’s tipping policy (that waitresses do not share tips with bartenders), which was posted in response to a non-employee/relative’s question regarding how his night at work went. JT’s Porch Saloon & Eatery Ltd., NLRB Div. of Advice, No. 13-CA-46689, 7/7/11. The employee’s response complained that he hadn’t had a raise in five years, and that he was doing waitresses work without tips. He also called his customers “rednecks” and stated that he hoped they “choke on glass” as they drive home drunk. The postings were not discussed with other employees, either before or after the posting. The OGC opined that there was no evidence of the “concerted activity” protected by Section 8(a)(1) of the National Labor Relations Act (NLRA) and that, therefore, the firing of that individual because of his postings did not violate the NLRA.
Less than two weeks later, on July 19, 2011, the OGC responded to a request for advice regarding whether an employer unlawfully discharged an employee for inappropriate Facebook postings that referenced the employer’s mentally disabled clients. Martin House, NLRB Div. of Advice, No. 34-CA-12950, 7/19/11. In that instance, an employee of a non-profit residential facility for homeless people with significant mental health issues engaged in a Facebook “conversation” with a non-employee/friend in which she referenced a client’s “voices” and told her friend it was “spooky” to work in a “mental institution” at night. One of the employer’s former clients saw the postings and called to report her concern, and the employee was fired. The employer based its action on the premise that it is not “recovery oriented” to use the clients’ illnesses for personal amusement. The OGC pointed out that the employee was not seeking to induce to prepare for group action related to her job conditions. Instead, the postings were communications with non-employees/friends about what was happening on her shift. The OCG found that the employee was not fired in violation of the NLRA.
Also on July 19, 2011, the OGC responded to question as to whether a retail employer violated Section 8(a)(1) by disciplining an employee for posting profane comments, critical of local management, on his personal Facebook page. In that circumstance, a customer service employee in Oklahoma posted comments to his Facebook page after interacting with a new Assistant Manager. The comments were read and responded to by co-workers. However, the responses consisted largely of “hang in there” type remarks, and did not reference terms and conditions of the work environment. The OGC determined that the company’s discharge of the individual was not a violation of the NLRA, because the postings were made “solely by and on behalf of the employee himself” and did not look seek to initiate or induce group action. According to the OGC “mere griping” is not protected activity.
These recent advisory letters indicate that the NLRB’s review of social media cases is developing further, but there still are no clear-cut directives on which employers can rely for advice. However, some newly developed resources are available. Earlier this year, the U.S. Chamber of Commerce submitted a Freedom of Information Act (FOIA) request to the NLRB, seeking “copies of all charges, complaints, and completed settlements related to social media.” In response, the Chamber received information going back to 2009 which included 117 charges, 7 complaints, and 5 settlement agreements, and compiled that information into a survey that is available for review. According to the Chamber, the purpose of this survey is to “summarize the publicly available information obtained through our FOIA request and other available sources regarding the NLRB’s caseload related to social media in an effort to help reveal the many areas where social media and labor law intersect—areas that will confront the Board, employers, and other stakeholders in the coming months and years.” Compiled by Michael J. Eastman, Executive Director, Labor Law Policy, U.S. Chamber of Commerce, this compilation is a “must-read” resource for employers. See Michael’s comments on the Chamber’s blog.