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SHRM Newsletter: Social Media, Workplace and the NLRB

09/30/2011

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September 30, 2011

This is Utah SHRM Legal-mail no. 2011-17 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-   A CLOSER LOOK AT SOCIAL MEDIA, THE WORKPLACE AND THE NLRB

-   WHAT IS THE APPLICABLE LAW ON THIS ISSUE?

-   HOW DOES THE LAW GENERALLY APPLY?

-   SOME HELPFUL COMMENTATOR ANALYSIS OF THE SOCIAL MEDIA CASES

-   NLRB ADVICE ON POLICIES AND HANDBOOKS

-   SO WHAT SHOULD YOU DO?

A CLOSER LOOK AT SOCIAL MEDIA, THE WORKPLACE AND THE NLRB:  Many employers are vexed by how to deal with Facebook and other social media in the workplace.  In particular, many employers are confused about how/when they can and cannot discipline employees who make what are perceived to be inappropriate comments about the employer or workplace on social media platforms.  The National Labor Relations Board (NLRB) and/or its administrative law judges have added to this concern with a series of rulings faulting employers for legal violations regarding social media discipline.  Moreover, a number of legal commentators now are actively discussing this situation with some dire warnings for employers.  See, for example: http://www.shrm.org/LegalIssues/EmploymentLawAreas/Pages/NLRBActivelyEngagedin.aspx and

http://www.washingtonworkplacelaw.com/private-employers/fired-because-of-facebook-nlrb-general-counsel-addresses-offensive-facebook-posts-in-the-context-of/ and

http://www.seyfarth.com/index.cfm/fuseaction/publications.publications_detail/object_id/128494b3-bd47-40d8-9fd4-2a48d86bc383/YourRetailEmployeesWhoBlogTweetandPostAbouttheBusinessMayBeProtected.cfm and

http://www.ogletreedeakins.com/publications/2011-08-18/what-did-you-say-social-media-and-nlrb

Perhaps it is time for an up close look at the issue?  Indeed it is…see below.

WHAT IS THE APPLICABLE LAW ON THIS ISSUE?  The applicable law for the NLRB cases is the National Labor Relations Act (NLRA).  Many employers make the mistake of assuming that this law only applies to a business with a unionized workplace or where a union has been proposed.  Although the NLRA does apply to such businesses with such situations, it also applies to employers without unions.  Probably the most commonly applied provision in non-union settings is Section 7 of the NLRA, the provision prohibiting an employer from discriminating against employees who engage in concerted activity.  What does this mean?  As one commentator recently explained, “Section 7 of the National Labor Relations Act (NLRA) permits employees to engage in ‘concerted activities for the purpose of collective bargaining or other mutual aid or protection.’ Regardless whether the employer is unionized, employees must be free to discuss the terms and conditions of employment without fear of reprisal.” Need examples? Keep reading please.

HOW DOES THE LAW GENERALLY APPLY? This law typically means you cannot prohibit an employee or group of employees from talking with co-workers about how they believe they have been unfairly disciplined, or about how they are unhappy with some aspect of the terms/conditions of their job or about their wages.  By the way, many employers get tripped up in particular on this last point by including statements in their handbooks or policies that prohibit employees from discussing their wages with each other.  However, the right to discuss wages is viewed by the NLRB as at the heart of Section 7 rights.  On the other hand, Section 7 does not typically apply to activities such as: an individual’s gripes not involving terms or conditions of employment or, if about work, gripes about a manager that are not addressed to co-workers or do not seem intended to invite group activity or mutual aid and protection.  Section 7 also does not protect violent acts; defamation; or discriminatory conduct.  I know, I know…these lines of demarcation are not always perfectly clear. So how does Section 7 apply to Facebook and the other social media cases?  Please read on.

SOME HELPFUL COMMENTATOR ANALYSIS OF THE SOCIAL MEDIA CASES: One recent commentator has provided this helpful analysis of the social media cases-

*Two-Pronged Analysis: Section 7 protects employees’ right to engage in “protected concerted activity.” The cases summarized in the NLRB’s report suggest that an employee’s social media use is protected if the employee’s comments: (i) relate to the terms and conditions of employment; and (ii) can reasonably be interpreted as acting with, or on behalf of, other employees. The NLRA does not protect personal gripes and/or comments that have no real connection to work conditions.

*Related to Terms and Conditions of Employment: Examples of social media cases where the NLRB concluded the comments were sufficiently related to the terms and conditions of employment involved topics of job performance, workload, supervisors, and staffing levels. In contrast, employee comments about the employer’s customers or third parties were not entitled to protection under the NLRA.

*Concerted Activity: To be concerted, social media use must be directed to or involve co-workers and invite or induce them to engage in further action. In several cases, the NLRB concluded that, although the employee’s social media posts were read by fellow co-workers and elicited responses by some, the complaints did not constitute “concerted activity” because they were individual gripes and not aimed to induce group action. For example, in one case, an employer disciplined an employee for profane Facebook comments that were critical of management, and several co-workers posted supportive responses. The NLRB concluded the employee’s Facebook postings were not concerted activity because “they contained no language suggesting that the employee sought to initiate or induce co-workers to engage in group action; rather they expressed only his frustration regarding his individual dispute with the [manager] . . . . Moreover, none of the co-workers’ Facebook responses indicated that they had otherwise interpreted the employee’s postings. They merely . . . offered emotional support.” See http://www.shrm.org/LegalIssues/EmploymentLawAreas/Pages/NLRBActivelyEngagedin.aspx

Another commentator has analyzed the NLRB social media cases this way:

  • When an employee "acting with or the authority of" coworkers (a) "seeks to initiate, induce or prepare for group action," or (b) "brings truly group complaints to the attention of management," that employee's action is protected.
  • When the employee's activities are "the logical outgrowth of concerns expressed by the employees collectively," the employee's activities are protected.
  • When the employee is engaged in activity "solely by and on behalf of the employee himself," the employee's activity is unprotected.
  • When the employee's comments are "mere griping," as opposed to "group action," the employee's comments are unprotected. 

See:  http://www.washingtonworkplacelaw.com/private-employers/fired-because-of-facebook-nlrb-general-counsel-addresses-offensive-facebook-posts-in-the-context-of/

NLRB ADVICE ON POLICIES AND HANDBOOKS:  Some of the NLRB cases have involved wording in policies or handbooks, some of which the NLRB has concluded too broadly restricted employee Section 7 rights.  The policies that were found to be troublesome or unlawful broadly prohibited “unprofessional communications,” “disparaging” remarks, invasions of privacy, “inappropriate discussions” and posting of photos with the employer’s name on it.  As one commentator notes, “The current NLRB would likely find conduct involving mere disparagement, simple profanity, rudeness, and shouting to be protected.” See http://www.ogletreedeakins.com/publications/2011-08-18/what-did-you-say-social-media-and-nlrb  A number of those policy/handbook cases are outlined in the NLRB’s recent report on this issue, found at: http://nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases  The recommendation from the NLRB is that relevant policies should clearly indicate that the policy does not apply to employee rights under Section 7.  In other words, employees should be told that they can engage in concerted activity regarding matters related to their terms and conditions of employment.

SO WHAT SHOULD YOU DO? Here are a few ideas.  Given the difficulties of these issues and the still-evolving nature of the NLRB’s position, be very careful when disciplining/firing someone because of communications with co-workers about work issues, whether they occur live (by phone, face-to-face), in writing (note, memo), or electronically (email, text, tweet, blog, Facebook, other social media posting).  When contemplating such discipline, get legal advice and specifically ask your legal counsel how Section 7 of the NLRA plays into the situation.  You should also carefully look at your policies/handbooks and compare them to those with which the NLRB has taken issue.  Are you at risk too? Do your policies give the Section 7 disclaimer?  If you answer yes and no respectively, get some legal advice on how to change your policies.  Finally, while many supervisors often have a good working knowledge about many aspects of employment law, most have no clue about employee Section 7 rights under the NLRA.  Educate them.  And stay tuned for further developments.

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.