Several hours ago, the National Labor Relations Board ("NLRB") posted a report describing the cases it has investigated regarding an employer's social media policies. The report is very instructive and gives valuable guidance as to the NLRB position on the type of social media policies adopted by employers, and also on an employer's right to discipline an employee for his/her use of social media.
In order to draft policies correctly, and to adopt appropriate HR practices, an employer must understand what is protected. In most settings, employees do not have unfettered "free speech" rights. However, the National Labor Relations Act ("NLRA") does provide employees with certain free speech (and activity) rights. Per section 7 of the NLRA, an employee has the right "to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection." Case law has explained this provision as an employees right to act with or on authority of other employees. This means that employees can discuss among themselves the terms and conditions of employment without fear of employer interference.
The NLRB has concluded that the following social media postings constituted concerted activities:
- A commissioned salesperson expressing the concerns of other salesperson by complaining about the car dealership's promotion where it served hot dogs, water, fruit and snacks, would result in few sales and therefore few commissions.
- Restaurant workers complaining about the employer's inability to correctly withhold personal income taxes, resulting in several employees owing taxes at the end of the year.
- Protesting an employer's refusal to provide a union representative in a possible disciplinary setting on Facebook.
The NLRB has concluded that the following social media postings did not constitute concerted activities:
- A newspaper reported tweeting disparaging comments about another television station, and about the city's homicide rate. The reporter was not discussing workplace conditions; nor did she seek to involve other employees in her comments.
- A bartender who complained that he did not receive tips under the employer's tipping policy was discussing working conditions. However, he posted these comments in a discussion with his relative. There was no evidence that the bartender intended to involve co-workers in this discussion.
- A dispatcher at an ambulance company posted a comment on her Senator's web page criticizing her employer. However, she did this on her own, and did not involve co-workers.
- A night-shift worker at a mental health hospital did not engage in concerted activities when she criticized the behavior of a patient at the hospital in the Facebook post she drafted while at work. There was no evidence the employee was inducing any type of group action.
- A retail worker did not engage in concerted activity when she posted personal gripes on her Facebook page. She did not attempt to initiate or induce group action, although several co-workers commented on her post.
In examining these cases, it is clear that before an employer takes disciplinary action against an employee, the employer should make two determinations. First, the employer must understand the nature of the employee's social media posts. Was the employee discussing the terms and conditions of employment, such as wages, hours, staffing, etc. If the answer is yes, the employer should determine whether the employee attempted to involve co-workers, or induce group action, or whether the employee was speaking with the authority of others. If the answer to this question is also yes, then the employee was engaging in protected activity.
Potential Exceptions to the Protections of Concerted Activity if Language is Vulgar or Disparaging
An employer may encounter a situation where the employee used vulgarity, or was otherwise "insubordinate". An employer must understand that the NLRB does not have the same point of view as most employers. The NLRB does not frown on mere "swearing or sarcasm." Rather, the behavior must be sufficiently opprobrious, meaning contemptuous reproach, scorn or abuse. So for example, in the case involving restaurant workers complaining about management, the term "asshole" was not so opprobrious as to justify termination. However, the terms "son of a bitch" or "mother fucking liar" are sufficiently opprobrious as to justify termination.
In determining the severity of the vulgar comments, the NRLB uses a four-part test -- referred to as the Atlantic Steel test. The NLRB looks at: (1) The place of the discussion; (2) the subject matter of the discussion; (3) the nature of the outburst; and (4) whether the employee was provoked by an employer's unfair labor practice. However, it appears that the fourth factor, which will often favor the employer, is not always relevant, particularly if the vulgar comments are, in the view of the NLRB, less offensive than other vulgarities.
Another factor an employer might face when confronting concerted activities is a public comment that disparages the company, its products or management team. Apparently, such a comment is not grounds for termination. The NLRB uses the Jefferson Standard test. Under the test, if an employer disciplines an employee for a comment made to the public that disparages the company or a product, without reference to a labor dispute, the employer's actions may be appropriate. The inquiry focuses on whether the comments are so disloyal, reckless or maliciously untrue, that they lose any protection as concerted activity. Moreover, whether or not the employee makes reference to a labor dispute may be irrelevant provided that the comment was not too disparaging or disloyal.
The lesson learned is that even if an employee uses disparaging, malicious or vulgar comments, the employer must use caution. Consider whether others would consider the comments sufficiently vulgar or disparaging as to warrant discipline. Unfortunately, in today's society much of what is said, and even celebrated, is crass and vulgar. Sensitivities are diminished. Therefore, if you, an an employer, encounter concerted activity which is vulgar or disparaging, react slowly. Don't think that just because the language used is unseemly that you will be justified in disciplining an employee. The employee's language must be somewhat egregious to justify discipline.
Provisions of a Social Media Policy
In the cases it has examined, the NLRB has generally concluded that the provisions of the company's social media policy are overbroad. This should not suggest that an employer should not have a social media policy. Every business should have such a policy. However, it's provisions should be clear, precise and limited to avoid interfering with an employee's NRLA rights to engage in concerted activity.
The NLRB has found the following provisions to be overbroad:
- Prohibiting pictures of oneself as an employee;
- Prohibiting disparaging comments;
- Prohibiting offensive, rude or discourteous comments;
- Prohibiting comments that disregard the company's or an individual's privacy rights;
- Prohbiting comments that are embarassing, harassing or defamatory;
- Prohibiting the disclosure of information on co-workers of the company;
- Prohibiting photos of the employer's building, logo or brand; and
- Prohibiting comments that damage the company's reputation or goodwill.
The only policy provision that the NLRB has accepted is a policy preventing an employee from forcing other employees to communicate with them on social media.
Why does the NLRB object to the provisions I cited? Apparently, they are so overbroad that an employee could be prevented from exercising his/her section 7 NRLA rights to concerted activities. For example, the provision prohibiting embarassing or harassing comments could prevent an employee from complaining about workplace conditions.
So what can an employer have in it's social media policy? I suggest that an employer can use some of the provisions the NLRB decries as overbroad. However, the use of such provisions should be coupled with examples of prohibited conduct. The more examples the employer gives, the more likely the policy won't be deemed overbroad.
An employer should also consider describing the policies behind the prohibition. For example, in the case involving the mental hospital, the employer described its policy of protecting its patients from the stigma of mental illness.
Employers should also include a provision stating that nothing in the social media policy is intended to prevent an employee from engaging in activities protected by the NLRA including discussions regarding the terms and conditions of employment.
I welcome the NLRB's report on social media. It will assist employers in drafting social media policies and also in disciplining employees for their use of social media. However, it is important for an employer to understand the concept of "concerted activities" and when the use of vulgar or disparaging comments may take an employee outside the protection of the NLRA.
Employers must also carefully draft their social media policies with specific examples of prohibited conduct, an explanation for the employer's rule, and an exception for any section 7 rights. Doing these things will provide the company the most protection possible against lawsuits based on section 7 of the NLRA.
If you need further addressing these issues, please contact me.