On January 24, 2012, the National Labor Relations Board (NLRB) Acting General Counsel, Lafe Soloman, issued a new report on unfair labor practice cases involving employee use of social media and employers’ social media policies. The report (Memorandum OM 12-31) summarizes 14 recent social media cases reviewed by the NLRB’s Division of Advice.
The report reveals that the Acting General Counsel continues to follow the view that employees using social media to engage in protected concerted complaints about their employment are protected by the National Labor Relations Act, whereas social media use by employees to simply voice “individual gripes” does not constitute protected activity. The report also provides useful guidance for employers drafting social media policies on the type of language that the NLRB’s Division of Advice considers unlawful.
Protection for Concerted Activity
In one case, an employee working for a collections agency, upset that she had been transferred to a lower-paying position, updated her Facebook page with a post that stated that the employer had “messed up” and that she was done being a good employee. This comment included expletives.
A coworker commented on this post, indicating that he was “right behind” the employee. Another coworker commented with a similar expression of support for the employee. Additionally, several former employees also posted remarks, including one comment that called for a class action against the employer.
When the employee returned to work, the employer showed her a copy of her Facebook posts and terminated her employment due to her comments. The Acting General Counsel said that the employee’s initial Facebook statement and the discussion it generated involved complaints about working conditions and the employer’s treatment of its employees, and clearly fell within the NLRB’s definition of concerted activity. He further concluded that the employer unlawfully terminated the employee in response to her protected activity.
The NLRB’s Division of Labor also found the employer’s rule prohibiting “making disparaging comments about the company through any media” unlawful. The Acting General Counsel stated that this rule could reasonably be construed to restrict protected activity, including employee statements about unfair treatment. He further noted that the rule contained no limiting language that would clarify to employees that the rule does not restrict such protected activity.
Individual Gripes Not Protected
In contrast, the NLRB’s Division of Advice concluded that an employee’s angry Facebook update complaining about her coworkers and employer and stating that she hated people at work did not constitute protected concerted conduct because the postings merely expressed the employee’s personal anger with her coworkers and employer, were made solely on the employee’s own behalf, and did not involve the sharing of common concerns.
However, the employer’s social media policy was found to be unlawful. That policy prohibited employees from using social media to engage in unprofessional communication that could negatively impact the employer’s reputation or interfere with the employer’s mission. The policy further prohibited unprofessional or inappropriate communication regarding members of the employer’s community. The NLRB’s Division of Advice found this language would reasonably be construed to chill employees in the exercise of their protected rights.
Lawful Policy Language
Another case cited in the report provides an example of social media policy language considered lawful. In this case, the employer’s policy prohibited the use of social media “to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.” The Acting General Counsel stated that this rule prohibiting comments about coworkers, supervisors, or the employer could not reasonably be construed to apply to protected activity as appears on a list of “plainly egregious conduct,” such as discrimination or harassment based upon protected classifications.
A full copy of the Acting General Counsel’s Memorandum OM 12-31 can be found at https://www.nlrb.gov/operations/om-memoranda-0.
Contact: Emily Ciecka Wilcheck