Hunton Employment & Labor Perspectives

The focus on social media by the National Labor Relations Board (“NLRB” or the “Board”) continues as evidenced by its recent report issued by Acting General Counsel Lafe Solomon.  The report discusses fourteen social media cases that were decided by the Board after Regional Directors submitted requests for advice to the Board’s Division of Advice.  The cases highlighted by Solomon give some insight to how the NLRB will handle various social media issues in the future.

The guidance provided by the NLRB indicates that employers should be conscious of protected concerted activity when responding to employees’ social media posts and should additionally ensure that social media policies are drafted narrowly so as not to infringe on employees’ rights protected by the National Labor Relations Act (“NLRA” or the “Act”).  Solomon explains that he offers the case summaries in the NLRB report in an effort to assist practitioners and human resources professionals and to “encourage compliance with the Act and cooperation with Agency personnel.”  Several of the cases in the NLRB’s report are discussed below.

Facebook postings determined to be protected concerted activity

• In preparation for a meeting at work to discuss job performance, an employee posted on Facebook that her coworkers did not help the employer’s clients enough and asked her coworkers how they felt.  Several coworkers responded to the Facebook post.  The NLRB explained that such actions were protected concerted activity because the employee was acting with or on the authority of other employees; the posts commented on staffing and job performance and therefore implicated the terms and conditions of employment; and the posting was initiated in preparation for a meeting with the employer.
• A sales person posted pictures on Facebook from a work event and included comments criticizing the employer for its hosting of the event and providing inexpensive food and beverages.  The sales person’s activities were protected concerted activity because he had been complaining with coworkers about the food for the event and the sales person had told his coworkers that he would be placing the pictures on Facebook.  As a result, the sales person was vocalizing the sentiment of his coworkers.  Additionally, the post was related to the terms and conditions of employment since the choice of refreshments could impact the employee’s commission.

Facebook posts and tweets that were not protected concerted activity

• The Board advised that an employer’s termination of an employee who tweeted inappropriate tweets from a work-related Twitter account was not unlawful.  The employee’s tweets included a tweet critical of the paper’s copy editors, tweets about homicides in the city where the paper was published and several tweets with sexual content.  The employer did not have a social media policy but instructed the employee not to tweet about anything work related.  Because the employee was terminated for writing inappropriate and offensive comments, which did not involve protected concerted activity, his termination did not violate the Act.
• An employee did not engage in protected concerted activity when he posted on Facebook complaining about his employer’s tipping policy.  The employee, a bartender, never raised the issue with management and no other employees commented or responded on his Facebook posts nor was the issue ever raised with his coworkers.  The NLRB determined that the employee was acting solely on behalf of himself and there was no concerted activity.
• The NLRB found that an employee who had posted on Facebook about an individual gripe was not engaged in protected concerted activity.  The employee had posted on Facebook after an interaction with a new assistant manager and commented about the “tyranny” at the store, noting that a lot of the employees are about to quit.  Although other coworkers posted supportive comments, the Board advised that there was no concerted activity because the posting did not include any language indicating that the employee sought to initiate or induce coworkers to engage in action.

Violations of Section 8(a)(1) for threatening to sue

• Employer violated Section 8(a)(1) when the employer’s attorney sent a letter to employee who had posted comments on Facebook expressing her dissatisfaction with the employer for not withholding state taxes and stating that the employer did not know how to do paperwork.  The letter stated that legal action would be taken unless the employee retracted her “defamatory” statements.  The NLRB advised that the letter was unlawful even if there was a reasonable basis for the potential legal action because the letter would reasonably tend to interfere with the employee’s Section 7 rights.

Union’s video on Facebook could coerce or restrain individuals’ right to work for a non-union employer

• The Union violated Section 8(b)(1)(A) by posting an interrogation videotape on YouTube and Facebook.  A union business agent and several organizers went to a nonunion jobsite with a video camera and told the employees that they were inspecting the job and had received reports of illegal workers.  The individuals did not identify themselves or reveal their union affiliation but proceeded to question the employees about their immigration status, forcing the employees to respond when they resisted.  After videotaping the interrogations, the union then edited the video and posted it on YouTube and Facebook.  The Board explained that the union’s conduct violated the Act because it had a reasonable tendency to restrain or coerce employees in the exercise of their Section 7 rights, which includes the right to work for a nonunion employer.

Overbroad social media policies

• An employer had a policy that 1) prohibited employees from using any social media that may violate, compromise or disregard the rights and reasonable expectations of privacy or confidentiality of any person or entity; 2) prohibited any communication or post that constitutes embarrassment, harassment or defamation of the employer, its employees, officer board member, representative or staff member; and 3) prohibited statements that lack truthfulness or that might damage the reputation or goodwill of the employer, its staff, or employees.  Because the policy prohibiting the use of social media in regards to confidentiality did not have any limits, did not explain what was confidential and was used to terminate an employee for posting on Facebook about working conditions which would be protected by the Act, the Board advised that the policy was overbroad.  Additionally, the Board found the other policies overbroad as well because they would apply to protected criticism of the employer’s labor policies or treatment of employees and the policies did not define its broad terms to limit them to exclude Section 7 activity.

Lawful social media policy

• The NLRB determined that an employer’s social media policy that precluded employees from pressuring their coworkers to connect or communicate with them via social media could not reasonably be read to restrict Section 7 activity and was sufficiently specific in its prohibition against pressuring coworkers and applied only to harassing conduct.  The Board also considered several of the employer’s other social media guidelines and found them to be overbroad because they could be interpreted to restrict Section 7 rights.