The National Labor Relation Board’s Acting General Counsel has released a report summarizing a number of recent NLRB decisions involving employers’ restrictions on employee use of social media.
Although these decisions do not have the same force and effect as cases decided by a court of law, they provide insight as to how the NLRB is currently reviewing social media issues that impact employee rights which are protected by Section 7 of the National Labor Relations Act. It is important to remember that an employee need not be represented by a union to be protected under the Act.
In general, an employer commits an unfair labor practice in violation of the act by interfering, restraining or coercing an employee in the exercise of his/her rights under Section 7 of the act. Section 7 provides that “an employee shall have the right to . . . engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Although the acting general counsel’s report is lengthy, at more than 20 single-spaced pages, it does a good job of summarizing the facts of each case. It also does a good job pointing out which employer social media policies and practices violated employee Section 7 rights and which were deemed to be lawful. Below are some examples comparing cases where the NLRB found unlawful employer policies or practices (i.e., a violation of employee Section 7 rights) and those the NLRB found lawful.
Unlawful policies and/or practices
* Terminating an employee who made and received comments about her supervisor whom she called a “scumbag” on her Facebook page.
* Terminating an employee who commented on a coworker’s Facebook page that their manager was “such an asshole” for improperly deducting taxes from their pay.
* Maintaining a social media policy that prohibited “rude and discourteous” language to a client or co-worker.
* Maintaining a social media policy that prohibited employees from posting pictures of themselves which depict the company in any way, including a company uniform, corporate logo, or company vehicle.
* Terminating an employee who posted pictures of, and sarcastic comments about, food and beverages that were served by his company as a part of a sales promotion event.
Lawful policies and/or practices
* Terminating an employee who posted inappropriate comments about mentally disabled patients she cared for during a Facebook conversation with two friends who were not co-workers
* Terminating a bartender who commented on Facebook about customers and his employer’s tipping policy in response to a question from a relative who was not an employee. The bartender referred to his customers as “rednecks” and stated that he hoped they choked on glass as they drove home drunk.
* Maintaining a policy that required employees to respond to all media questions by replying that they were not authorized to comment for the employer, to take the name and number of the media organization and to call the company’s public affairs office.
The above examples (and the complete AGC Report) serve as a reminder about the care that employers must exercise when drafting and enforcing social media policies. Whether an employer actually commits an unfair labor practice through its maintenance or enforcement of a social media policy is typically a fact-intensive analysis that often hinges on whether such conduct has infringed upon the employees’ right to engage in protected concerted activities (rights protected by Section 7of the Act).
The subtle nuances between lawful and unlawful employer conduct are not always readily apparent. Many times, such violations result from the careless implementation or enforcement of such policies, as opposed to the intentional violation of employees’ rights.
Michael Pepperman is a partner in the law firm of Obermayer Rebmann Maxwell & Hippel, where is a senior member of the Labor Relations and Employment Law Department.