Hunton Employment & Labor Perspectives

How would you handle the following situation?  You have recently learned that one of your employees “posted” on Facebook complaining about the company, specifically commenting on work conditions and wages.  Several other employees have made comments on this employee’s Facebook page and a discussion has ensued.  These comments and complaints are damaging to the company’s reputation and portray the company in a negative light. 

Your natural inclination may be to instruct the employee to take these comments down and prohibit him from continuing to use Facebook to discuss work issues.  Yet, unions may be looking for you to do exactly that so they can try to file an unfair labor practice charge with the National Labor Relations Board (“NLRB”).  Employers have the right to protect their reputations and to prevent the possible disclosure of confidential information.  But unions may try to construe the above situation and the employer’s reaction to it as interference with an employee’s right to engage in concerted activity, a violation of Section 8 of the National Labor Relations Act (“NLRA”).  Notably, such an argument by unions could apply to both unionized and non-unionized employers. 

Protected Concerted Activity 

Section 7 of the NLRA protects “the right . . . to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.”  29 U.S.C. §  157.  “Concerted activity” is action taken in pursuit of a common goal by multiple employees or by a single employee where the employee is authorized by other employees to act on their behalf.  The concerted activity is protected if it is intended for mutual aid or protection (a lawful objective) and executed by a lawful method.  Many people think of strikes, group complaints, or honoring picket lines as typical activities protected by the NLRA.  However, an activity may fall under the protection of the NLRA even where it appears to have little or nothing to do with unions.  Employees have the right to engage in concerted activities even where no union activity is involved and in situations where the employees have not considered a collective bargaining agreement. 

Under Section 8 of the NLRA, employers may not interfere with, restrain, or coerce employees in their rights to engage in concerted activities.  29 U.S.C. §  158(a)(1).  Employers who take an adverse action toward, or retaliate against, employees because of protected concerted activities may violate the NLRA and possibly find themselves having to defend against an unfair labor practice charge.  As noted, this is the case for both unionized and non-unionized employers. 

Facebook, Blogs, Chat Rooms and More

When addressing employee use of social media, employers should be aware that unions and possibly the NLRB may construe employees’ use of social media as protected concerted activities.  Unions may argue that employees are exercising their Section 7 rights when they use Facebook, blogs, chat rooms, twitter and even email.  Because of its nature, social media provides the perfect opportunity for employees to interact with one another, and unions and the NLRB may try to classify such interactions as employees engaging in protected concerted activity.   

Social media, and employees’ use of it, presents considerable challenges to employers.  Misuses of social media can result in damage to the employer’s reputation, breach of confidentiality, and trade secret theft.  To minimize those risks, employers may implement a social media policy to provide some limitations on how social media may be used relating to the company.  Such policies may address employees’ use of social media both at the workplace, with company property, and outside of the workplace.  When constructing such a policy, employees’ Section 7 rights should be considered.   Employers must avoid any policy that may reasonably tend to “chill” employees in the exercise of their Section 7 rights, such as overly broad restraints that forbid employees from discussing work conditions with one another or from discussing the company on the Internet or other social forums. 

Other Possible NLRA Claims

With regard to social media, unions may also argue that employers violate the NLRA by monitoring employees’ use of social media because they are engaging in surveillance of union activities.  Employers generally may not use surveillance where employees are engaged in protected union activities, such as exercising their Section 7 rights.  Because surveillance tends to discourage employees from exercising their Section 7 rights, it is viewed as a violation of the NLRA.  Where unions assert surveillance concerns with social media, the matter will often turn on whether the social media is public or private (where there are passwords in place to limit access to the blog, chat room, Facebook page, etc.).  Employers also should treat both union and non-union use of social media in the same manner to avoid allegations of discrimination against union members and union interests. 

Because of the significant increase in its use, social media creates new challenges for employers in protecting their legitimate business interests.  Employers should be aware of the possibility that unions and the NLRB could seek to invoke the NLRA to protect employees’ use of social media in several respects.