JK-R: In your experience, what is the most overlooked aspect?
BG: “Many employers are unaware that the National Labor Relations Act (NLRA) might apply to an employee's social media posts. The NLRA is the federal law that protects union organizing activity. It dates from the 1930s and is part of the ‘New Deal' legislation under FDR. Everyone understands that the NLRA protects overt union support. However, what is less well known is that the NLRA also protects other ‘concerted' activity undertaken for ‘mutual aid and protection.'
“Depending on the circumstances, this can include an employee raising concerns about wages, hours or working conditions with co-workers, including over social media. So an employee's social media post can be protected by the NLRA even if it the post doesn't expressly mention a labor union or union organizing. In the case of social media, what we are seeing is a very old law (the NLRA) being put to use in a very recent communication medium (social media).”
JK-R: Do you have any tips on creating a social media policy?
BG: “Drafting a compliant social media policy has become tricky. The NLRB has become very active in striking down social media policies that it deems unlawful. The NLRB's theory is that an overbroad social media policy might ‘chill' an employee from exercising his or her right under federal labor law to discuss and organize with other employees around wages, hours and working conditions.
“For example, the NLRB will strike down any rule that prohibits ‘inappropriate,' ‘negative,' or ‘disparaging' posts on social media. The NLRB holds that this language is too vague, and would deter employees from discussing their wages, hours or working conditions. Similarly, the NLRB will strike down any rule that prohibits employees from posting ‘confidential information'— if ‘confidential information' is defined to include personal information, such as pay or benefits.
“When drafting a policy, the best approach is (to) be very precise in the language that you use. For example, while you can't prohibit an employee from posting something that is false, you can prohibit an employee from posting something that is intentionally false. You also need a clear definition around what qualifies as confidential information. You may find it helpful to include an NLRA savings clause in your policy. A savings clause assures employees that the policy will not be applied in a way that restricts their rights under the NLRA. The NLRB will be less inclined to challenge a social media policy that contains an NLRA savings clause.”
JK-R: What is the most surprising thing for a company to know an employee is legally allowed to post about on their personal social media accounts?
BG: “The breadth of the NLRB's protection of employee social media posts is shocking to most employers. First, companies are very surprised that the NLRB will investigate charges stemming from social media conduct where the employees are not represented by a union, and where the employees are not even trying to organize a union.
“Second, companies are surprised that the NLRB may find an employee's use of profanity or vulgarity in a social media post to be protected.
“Third, companies are surprised that the NLRB may defend employees who post pictures of supervisors, or direct insults to supervisors. Whether an employee's post is protected by the NLRA is always fact-specific. However, the NLRB will not dismiss a charge merely because it involves profanity or personal attacks.”
JK-R: If an employer finds an employee speaking negatively about the company on social media, what are the proper first steps it should take?
BG: “An employer needs to answer several questions before moving to discipline. First, is this employee posting about a labor union or labor organizing? If so, it is probably protected.
“Second, is this post about wages, hours or working conditions? If it's not about one of these things, then it's not protected under the NLRA. The NLRA does not grant free speech rights on social media. It merely allows employees to discuss and encourage group action about wages, hours or working conditions.
“Importantly, just because the post may touch on workplace issues does not mean it is automatically protected. An employee's personal ‘gripe' about his or her own employment terms is not engaged in protected activity. The employee needs to be encouraging or inciting group action in some manner for the post to be protected.
“The problem with social media is that it can be tricky because it is inherently communicative. And co-workers ‘liking' each other's posts, or sharing comments about the workplace over social media, can turn one employee's gripe into a protected discussion.
“Also, if you have a labor dispute pending — for example, an organizing drive, a union negotiation, or a strike — the NLRB will allow employees to post comments that are disparaging of the employer as long as the posts pertain to working conditions and are not intentionally false.”
JK-R: What is the wrong way to handle that, that you see happen?
BG: “I have seen employers discipline employees just because they see profanity on a social media post, for example. The reality is that many workplaces do not 100 percent prohibit profanity in their own workplaces. So discharging an employee for using profanity in a social media post can be inconsistent treatment.
“Another issue is posting pictures to social media. The NLRB holds that employees may have a right to take pictures of their workplace if the goal is to post the picture to social media in order to encourage other employees to organize around a workplace concern, such as safety in the workplace. So, again, a knee jerk reaction to discharge an employee who posts a picture of their work space on social media can cause a legal dispute.”
JK-R: Without giving any names, can you explain a case you've seen where an employer thought it had the right to fire/reprimand an employee for what they are posting, but they were not in the right?
BG: “There are a few NLRB decisions that have rattled the employer community. These decisions have really caused employers to wonder: How far is the NLRB willing to go to protect social media posts, and where can employers draw the line?
“First, in the context of a union organizing drive, the NLRB protected an employee who made a social media post referring to his direct supervisor as a ‘mother f—er.' The same employee also directed profanity at the supervisor's family. In that case, the NLRB defended the post on the grounds that the employee was ‘provoked' by the supervisor's alleged unfair treatment of employees in the workplace. This case really makes an employer question whether the NLRB is going to support employees using social media to bully supervisors whom they don't like.
“Second, in another case, the NLRB held that employees who discussed their employer's payroll withholding policy engaged in protected activity. The employees were not unionized and were not trying to organize a union. Instead, they were complaining over social media about the employer's tax withholding practices. In the course of that discussion they insulted the company and a particular supervisor.
“The NLRB found that the employees were engaged in ‘protected, concerted activity' under the NLRA. The NLRB found it noteworthy that some co-workers ‘liked' the employee's post on Facebook. The case has caused employers to question whether the NLRB will protect employees who merely take to social media to complain about their jobs, without any remote connection to union organizing.”
JK-R: In the article you wrote, you reference that an employee can legally post about wages, etc. online. What can an employer do legally, if anything, to get them to take their post down?
BG: “If the post is genuinely protected by the NLRA, the employer would not be able to have the post taken down. In that scenario, the NLRB would hold that it is ‘unfair labor practice' to discipline or fire the employee because of the employee's post.
“Likewise, filing a civil claim against the employee to remove the social media post could be a separate unfair labor practice. In the worst case, the NLRB could pursue legal action for reinstatement, back-pay and reimbursement of any attorneys' fees you caused the employee. Practically speaking, if the post is truly protected under the NLRA, the best approach might be to respond to the post in a well-reasoned manner, particularly if the post is visible to customers or to other employees.
“However, if the post is not protected under the NLRA, the employer can consider a range of options, including an attorney demand letter, filing a claim for defamation, or asking the website to remove the post.”
JK-R: You have your bar admissions in Arizona and California. Do these rules about social media posting differ from state-to-state? What would be a good resource for an employer to use to learn more about this information?
BG: “The NLRA rules on social media posts are federal law and apply in all 50 states. In order for the NLRB to investigate discipline based on a social media post, a charge must be filed with the Labor Board, which then investigates the charge and can issue a complaint against the employer. An employee must file the charge within six months of the discipline, or the employee's claim will expire.
“In terms of resources for employers, the NLRB website contains some memoranda and other guidelines on social media. However, these documents tend to be slanted in favor of employees and against employers. The best advice is to consult with your independent legal counsel when deciding whether to discipline an employee for a social media post.”
JK-R: Anything else to add?
BG: “We are in a time where labor law is in flux. This is largely due to the influence of social media, email and smart phone technology.
“As an example, we are already seeing the NLRB take steps to protect employees' ability to use their smartphone to record at work. We may soon see a time where the NLRB holds that employees can record company meetings and post them to their social media accounts.
“Employers need to be vigilant and measured when it comes to responding to these regulatory shifts.”
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Check out the social media blog on Jan. 18 to hear what others in the tire industry do in terms of employees and social media.
