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Thursday, April 26, 2012

The Issue of Social Media And Protected Speech In The Workplace - NLRB and The NY Law Journal

NLRB Acting General Counsel Releases New Memo On Social Media Cases and Protected Speech In The Workplace
As many employers and employment attorneys are aware, the area of "social media" is a hot topic. Indeed, the latest front in the area of social media has been employer efforts to obtain access to applicants' and employees' Facebook profiles by asking for user names and passwords. This has prompted a wave of proposed legislation banning such practices, the first of which was recently passed in Maryland and with other states likely to follow. The National Labor Relations Board has also taken an active interest in this area. In particular, the board has focused on employer policies and rules which seek to regulate and limit their employees' use of social media.
NLRB Acting General Counsel releases new memo on social media cases

Lafe Solomon, the Acting General Counsel for the NLRB, has issued an operations management memo detailing 14 recent cases in which the Office of the General Counsel dealt with questions arising from social media in the workplace. Half of the cases focused on social media policies, and the other half involved terminations of employees who had recently posted comments on the social media site Facebook.

The Office found five of the seven social media policies to be overbroad and found that two were lawful; one of the two was lawful only after being revised. The Office found that several of the Facebook-related charges were unlawful because they stemmed from unlawful policies, but in one case, the Office recommended upholding the discharge because the employee’s comments were not work-related.

The memo does not reveal the names of the parties out of privacy concerns. Several of the cases are noteworthy, because they represent a departure from the majority of opinions issued by the Office finding no violation of the Act in social media-related cases.

In one case, after an employee at a collections agency was moved to a different call group, the employee blasted her management on her Facebook page. A conversation ensued with several co-workers in her post, with some of the colleagues saying that they were “behind” her. The employee was then fired. The Office found that the social media policy was overbroad because it prohibited “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” That prohibition, found the Office, could be interpreted as restricting Section 7-protected statements, such as complaints of unfair treatment. Further, because the employee had initiated the conversation to complain about being moved to a less-desirable work group and because the conversation involved co-workers and the terms and conditions of employment, the Office found that the Facebook conversation was protected, concerted activity under the Act. Thus, the termination violated the Act.

In another case, the Office found that an employer unlawfully terminated an administrative assistant who posted comments on Facebook complaining about being reprimanded for her involvement in her fellow employees’ work-related problems. The employee had complained on Facebook about the termination of one of her co-workers, saying that she did not like that the employee was fired “for asking for help.” The employer told her not to give her opinion to co-workers who came to her for advice. She complained on Facebook about that order and the employer terminated her, citing the most recent posts and an earlier post in which she suggested that her manager displayed sexist attitudes. The Office found that the termination violated the Act, because the Facebook posts concerned terms and conditions of employment and because the employee’s co-workers had participated in several of the conversations. The Office also found that the employer had terminated the employee because it was concerned about where her conversations about terms and conditions of employment could lead.

In a third case, the Office found that a termination resulting from Facebook complaints about a mutual supervisor violated the Act. The employee initiated a Facebook conversation with co-workers after she was angered by the promotion of another co-worker. That conversation involved accusations of mismanagement and failures to provide raises or reviews. The employer terminated two of the employees and disciplined two others over the posts, and the Office found that the employees were engaged in protected concerted activity when they posted comments on Facebook because multiple employees were involved in a discussion that focused on terms and conditions of employment. The Office found that the terminations violated the Act, even though the employees had not made any plans for future concerted action, saying that the conversation was an “indispensable” step towards possible self-organizing.

In a fourth case, the Office found that an employer violated the Act when it terminated an employee who had participated in a co-worker’s Facebook conversation. The conversation focused on the allegedly negative attitude of a mutual supervisor, which they blamed for poor workplace morale. The employee blamed the supervisor and said she “hated the place,” and the employer terminated her. The Office found that it was “well established that employee complaints and criticism about a supervisor’s attitude and performance may be protected” and that, in the instant case, the employee’s post was part of employees’ concerted activity for mutual aid and protection, both because it was a continuation of earlier employee complaints to management about the supervisor, and because it was part of a discussion of shared concerns about terms and conditions of employment. Even though the employee’s comments focused on her own dissatisfaction, the Office found that the comment arose in the context of an ongoing discussion of terms and conditions of employment.

The Office also found that the comment had not lost the protections of the Act under the Board’s Atlantic Steel decision. Although the comment could have undermined morale, it was made during a discussion of terms and conditions of employment. The Office found that the “nature of the outburst” and “location” inquiries of Atlantic Steel combined to require consideration of the impact of the fact that the Facebook discussion could be viewed by third parties. The employer had argued that the employee had publicly disparaged the employer, thus justifying her termination, but the Office found that although the comments were critical, they were not defamatory and were not critical of the employer’s business policies or product. Thus, the Office found that the statement was protected language under the Act.

An employer’s social media policy was at the heart of another case in which the Office found that the policy, seen in the proper context, would not be seen as inhibiting protected actions. The policy allowed the employer to ask employees to confine their social networking to matters unrelated to the company, if securities regulations so required. The employer then barred employees from discussing in any form of social media “embargoed information,” such as pending reorganizations. The Office found that the rules were not unlawful, because even though the requirement could be construed to restrict employees from communicating regarding their terms and conditions of employment, in the overall context, employees reasonably would interpret the rule to address only those communications that could implicate security regulations. The Office also noted that employees do not have a protected right to disclose embargoes on corporate information and, thus, could not reasonably interpret the rule to prohibit communications about their working conditions.

Similarly, in a fifth case, an employee’s criticism of his employer following a deadly workplace shooting did not lose the Act’s protections. After the shooting, the employee had asserted that the employer’s conduct led to the shooting and frequently criticized the employee’s management style in published letters to a newspaper and in online comments on the paper’s website. Eventually, the employee posted a presentation online that he had made to his local council, charging the employer with Charging Party made a presentation multiple unfair labor practices filed, forced policy changes, unfair firings, harassment, and workplace bullying. The employer fired the employee, and the Office found that the comments were protected conduct, because they dealt with an ongoing labor dispute and because they were “the logical outgrowth” of conversations the employee had with co-workers about the terms and conditions of employment.

Moreover, the postings were not sufficiently defamatory to lose the Act’s protections. The Office noted that Allied Aviation Service protects public comments that air “highly sensitive issues.” In the instant case, the Office found that many of the online comments related to the employer’s alleged role in the shooting and that, however inflammatory, the comments also related to ongoing labor disputes. Thus, the comments were protected.

Source: CCH Editorial Staff.

NLRB on Social Media
By M. Michael ColeContact, The Recorder, April 19, 2012

As many employers and employment attorneys are aware, the area of "social media" is a hot topic. Indeed, the latest front in the area of social media has been employer efforts to obtain access to applicants' and employees' Facebook profiles by asking for user names and passwords. This has prompted a wave of proposed legislation banning such practices, the first of which was recently passed in Maryland and with other states likely to follow. The National Labor Relations Board has also taken an active interest in this area. In particular, the board has focused on employer policies and rules which seek to regulate and limit their employees' use of social media.

In one early case, American Medical Response of Connecticut, 34-CA-12576 (NLRB Region 34), the NLRB issued a complaint against a Connecticut ambulance service company that terminated an employee for posting negative comments about her employer and supervisor on Facebook. The NLRB alleged that AMR violated §7 of the National Labor Relations Act because the employee's comments constituted "protected activity" under the act. Of note, the complaint also took issue with aspects of the employer's social media policy, including restrictions on employees' ability to post pictures of themselves depicting the company in any way and restrictions on employee comments about the company, supervisors, co-workers or competitors. Although the case settled, as part of the settlement, the employer agreed to revise what the NLRB termed its "overly broad rules" so as to "ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions."

Since the American Medical Response case, the NLRB has continued to take an active role in policing employer social media policies. Back in August 2011, the NLRB's general counsel issued a report summarizing recent NLRB decisions on the application of the NLRA to employee social media activity on such sites as Facebook and Twitter. The report reviewed and summarized recent decisions on whether employees who were disciplined for social media activity were engaged in "protected activity" under the NLRA. The report also examined decisions that considered whether certain employer-promulgated social media policies were overbroad and violated the NLRA.

The NLRB's general counsel issued an updated report on Jan. 24. The new report summarized decisions addressing a variety of social media policies and provisions. For example, the NLRB took issue with a no-defamation policy that broadly prohibited employees from making disparaging comments about the company. Likewise, the NLRB found unlawful a policy that broadly prohibited discriminatory, defamatory or harassing web entries about the work environment or work-related issues. Where, however, an employer prohibits defamatory or disparaging comments as part of a rule which also prohibits other conduct such as making vulgar, obscene, threatening or intimidating posts, the board is more likely to view that policy as lawful given that it more clearly delineates for employees what is prohibited conduct and would not reasonably be understood to restrict an employees' rights under the NLRA.

In another case, the NLRB took issue with a broad confidentiality clause that prohibited employees from disclosing or communicating about confidential, sensitive, nonpublic information concerning the company without prior approval. The board took the view that a provision like this could reasonably be interpreted to prohibit an employee from discussing their terms and conditions at work, such as wages, which would be a violation of NLRA rights. In contrast, an employer's policy that prohibited the disclosure of confidential or proprietary information such as personal health information about the employer's customers or patients was deemed lawful because, in context, employees would understand that the rule was intended to protect the employer's customers and was not a restriction on NLRA rights.

The NLRB is also policing how employers may restrict employees from the use of the employer's logos and trademarks. Yet again, the NLRB took issue with a broad policy that prohibited the use of the company's name or service marks outside the course of business without prior approval. The NLRB's view is that employees have the right under the NLRA to use a company's name and logo while engaged in protected activity, i.e., paper-leafleting or picketing. While paying lip service to a company's interest in protecting its service marks and reputation, the board took the position that an employee's noncommercial use of a company name, logo or other trademark did not implicate these interests.

More generally, the NLRB also has taken issue with policy terms that are undefined and vague. Prohibitions on "disrespectful conduct," "inappropriate conversation" and "unprofessional communication" are all problematic in the board's view because they could be construed by employees as restricting rights under the NLRA.

In the wake of increased NLRB activity in this area, many employers have taken to relying on disclaimers in their handbooks which state that their policies are not intended to interfere with their employees' NLRA rights. As summarized in its most recent report, however, the NLRB has taken a harsh stance with regard to disclaimers. In the case at issue, the employer's disclaimer stated that its policies would not be interpreted or applied so as to interfere with employee rights to self-organize, form, join or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. The NLRB's stance was that this disclaimer was not sufficient to save a policy which otherwise prohibited an employee from discussing matters in an "inappropriate" manner because employees could not be expected to discern what is "inappropriate" or what is otherwise allowed.

Continuing the trend of the agency's activism in the social media arena, an NLRB administrative law judge, in G4S Secure Solutions (USA), 28-CA-23380 (March 29, 2012), recently held that a security company's social media policy, which prohibited employees from discussing "work-related legal matters," violated the NLRA. Once again, the NLRB took a dim view of employer disclaimers. In this case, the disclaimer stated that the employer's policies were not to be construed or applied in a way that interfered with employees' rights under federal law. Echoing earlier cases, the ALJ decided that the disclaimer did not save the provision because lay employees would not understand what is permissible under "federal law" and what would be a prohibited discussion of a "legal matter." The ALJ also found that the company's confidentiality provision violated the NLRA because it did not define what constituted "confidential information" and prohibited employees from giving interviews or making public statements about the company's "activities or policies," without providing a definition of those terms.

Continued developments from the NLRB over the past year highlight the need for employers to take a close look at their own social media policies and other employment policies. The ALJ's recent decision, consistent with prior decisions and the general counsel's reports, highlights the importance of having a carefully defined and crafted policy and handbook, as well as the risk of relying on disclaimers to save otherwise overbroad provisions.

M. Michael Cole is an associate with Miller Law Group, a women-owned employment law firm in San Francisco. He represents employers in complex litigation, including the litigation of wage-and-hour class and/or collective actions in the retail, financial services, insurance and food services industries.

In Practice articles inform readers on developments in substantive law, practice issues or law firm management. Contact Vitaly Gashpar with submissions or questions at

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