Let's set the scene: A poorly performing employee starts making disparaging, even slanderous remarks about his boss on his Facebook page. Several of his co-workers jump in (they are the employee's "friends" on Facebook), and post comments, agreeing with the original premise, and adding their own fuel to the fire. The Employer gets wind of this, and disciplines the employee for violating the company's policy about rude and discourteous behavior. The NLRB ruled this violated the National Labor Relations Act ("NLRA").
How is this so? Behavior offensive to company policy is protected when its broadcast to the world over the internet? What is going on?
All Employers, even those who don't have union employees, need to understand how the NLRA applies to them. In my last post, I explained the threshold requirements for determining whether an Employer is subject to the act. Generally, if your business has employees, and the volume of your business is over $50,000.00, the NLRA governs your business. Even if your employees are not in a union.
Once an Employer knows the NLRA applies, they need to understand its limitations. Section 7 of the NLRA protects employees who engage in “concerted activity” for their “mutual aid and protection.” Usually, protected concerted activity ("PCA") is defined as activity that is “engaged in with or on the authority of other employees” That means activity that extends beyond behavior that is done by and on behalf of an individual employee. PCA may also be found when it is the “logical outgrowth of concerns expressed by the employees collectively.”
Last month, the NLRB’s Acting General Counsel issued a report summarizing the NLRB’s recent social media decisions.The NLRB’s Division of Advice indicated that the following situations did not qualify for protection as PCA under Section 7 of the Act:
- A bartender had a Facebook conversation with his stepsister in which he complained that he had not had a raise in five years and did the job of a server without receiving tips. The conversation also contained rude comments about customers. No co-worker responded to the comments.
- A recovery specialist at a non-profit residential facility for homeless people had a Facebook conversation while at work with two non-employee friends. She posted comments about how the overnight shift was “spooky” and made jokes about the clients. No co-worker responded to the posts.
- A customer service employee at a large retail store posted disparaging remarks about her manager and later added a profane rant about the incident that precipitated the original post on Facebook. Co-workers responded only with “hang in there”-type remarks.
On the other hand, the Acting General Counsel’s report discussed several situations the NLRB found to be PCA, including the following:
- An employee’s negative Facebook post about her supervisor that drew supportive comments from co-workers and led to further negative comments by the employee.
- A former employee posted dissatisfaction that she owed state taxes because of her employer’s tax withholding policy and inability to do paperwork correctly. One employee clicked “Like” and other employees asserted they also owed money and intended to discuss it at a meeting.
What can Employers do to deal with this issue, or to head it off before it becomes a problem? I am an advocate for encouraging my Employer clients to establish clear, objective, written policies to indicate what they expect from Employees. However, a work rule or policy will violate the NLRA if the rule restrains or explicitly restricts employees from exercising their rights under the NLRA, including their right to engage in PCA. A rule is unlawful if (1) employees would reasonably construe the language to prohibit (or “chill”) the exercise of their rights under the NLRA, (2) the rule was promulgated in response to union activity, or (3) the rule has been applied to restrict the exercise of the employees’ rights under the NLRA.
The NLRB report discussed several examples of social media policies that violated the NLRA. Specifically, the following social media policies were unlawful:
- Prohibiting employees from making “disparaging comments” or engaging in “inappropriate discussions” about the company, superiors or co-workers.
- Prohibiting employees from posting pictures of themselves which depict the company in any way
- Prohibiting “offensive conduct” and “rude and discourteous behavior” in a broad manner, without limiting language that would remove the rule’s ambiguity with regard to PCA. In general, the NLRB finds that broad prohibitions reasonably tend to chill the exercise of employee rights under the NLRA.
Employers therefore must be extremely careful when drafting and enforcing social media policies. Even if you have a non-union shop, you need to carefully consider and review your social media policies. According to the NLRB, employees have the right to discuss terms or conditions of employment and workplace concerns. Will your policy tend to restrict this? If so, it needs revision. In addition, it appears that this kind of social media activity by employees must be analyzed on a case-by-case basis with an eye towards the audience and the content of supportive comments. If your not sure what to do or how to analyze the facts in light of the NLRA's restrictions, please consult your attorney. A knowledgeable employment lawyer can help you draft effective policies, and enforce them with less risk of a violation.