Fire over Facebook? A Primer on Protected Social Media Activity in the Workplace

Overview

Social media workplace issues continue to be a hot topic among practitioners, human resource professionals, media, and the public. Many companies have disciplined their employees for personal and professional social media activity and implemented policies to govern employee social media use.

Employer disciplinary actions for employee social media use and employer social media policies have come under the scrutiny of the National Labor Relations Board (NLRB), which has issued guidance, through three memoranda in August 2011, January 2012, and May 2012, on how it addresses these issues. However, the memoranda lacked specific guidelines to assist employers and their counsel in distinguishing between protected and unprotected social media activity.

This past August, the ACC, with sponsorship from Meritas, published an InfoPAK deciphering these three NLRB memoranda. The InfoPAK, entitled "Fire Over Facebook? A Primer on Protected Social Media Activity in the Workplace and Best Practice Guide for Managing Employee Social Media Use," simplified and analyzed several key concepts of labor and employment law as it relates to employee social media activity and employer responses. That InfoPAK also provided (i) an Analysis of Lawful v. Unlawful Work Rules and (ii) a Best Practice section for drafting, implementing, and enforcing workplace social media policies. These topics are not addressed in this QuickCounsel.

This QuickCounsel is intended to assist counsel and human resource professionals in quickly understanding the basic concepts of social media employment issues. It is not legal advice. Readers are strongly encouraged to review any current state or federal law that applies in all jurisdictions where a company operates, and to seek outside counsel as necessary.

The National Labor Relations Act

Congress enacted the National Labor Relations Act (NLRA) in 1935 to protect the rights of employees and employers and curtail certain private-sector labor and management practices that can harm the general welfare of workers, businesses, and the economy. The NLRA affords certain rights to employees to join together to improve wages and working conditions, and provides that covered employees have the right to engage in certain protected activities. The NLRA applies regardless of whether employees are members of a union.

Who Is Covered Under the NLRA?

Because the NLRB has "statutory authority over private-sector employers whose activity in interstate commerce exceeds a minimal level," most employees and private-sector employers, including nonprofits, employee-owned businesses, labor organizations, non-union businesses, and businesses in states with "Right to Work" laws, are subject to the jurisdiction of the NLRB. There are certain employees who are not subject to NLRB jurisdiction, and specifically excluded under the NLRA.

Protected vs. Unprotected Employee Social Media Activity

Certain employee activities are protected against employer retaliation in the United States. Generally speaking, employee activity, including online activity, is protected when two or more employees act together to improve their terms and conditions of employment. However, not all employee social media activity is protected under the NLRA.

What Is Protected Social Media Activity Under the NLRA?

Section 7 of the NLRA affords employees the right to discuss their wages and other terms and conditions of employment, both among themselves and with non-employees.

Section 7 applies equally to traditional offline communications and conversations via the Internet or social media, including blog posts, tweets, Facebook comments, and other forms of social networking. For example, an employee who sends a Facebook message to her colleagues about the employer's working conditions may be afforded the same protection as a group of employees who discuss corporate wage issues during the workplace lunch hour. Protected activities on social media could include posts protesting supervisory activities; posts/statements relating to employee staffing levels implicating working conditions; communications to the public related to an ongoing labor dispute; social media exchanges with reporters about wages and other terms of employment; posts regarding complaints and criticism about a supervisor's attitude and performance; use of an employer's name and logo to communicate with fellow employees or the public about a labor dispute; or engagement in protected activities on the employer's premises during non-work time and in non-work areas.

What Social Media Activity Is Not Protected Under the NLRA?

An employee's social media activity is not protected under the NLRA if it does not seek to involve other employees, does not relate to the shared terms and conditions of employment, or is an activity that is otherwise carried out in a reckless or malicious manner. Social media activity that is not protected could include communications unrelated to the terms and conditions of employment; posts protesting the quality of services provided by an employer that are only tangentially related to employee terms and conditions of employment, or expressions of an individual gripe.

What Is Concerted Social Media Activity Under the NLRA?

An employee generally engages in concerted activity when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. The test to determine whether an employee is engaged in concerted activity is whether the activity is engaged with or on the authority of other employees. Concerted social media activities may consist of two or more employees addressing their employer about improving their pay; discussing work-related issues beyond pay, such as safety concerns, with each other; or discussing shared concerns about terms and conditions of employment.

When Is a Single Employee's Social Media Activity Concerted Under the NLRA?

A single employee may engage in protected concerted activity if she is acting on the authority of other employees, bringing group complaints to the employer's attention, trying to induce group action, or seeking to prepare for group action. In certain circumstances, a single employee's activities could be deemed concerted activity if the activity is an indispensable preliminary step to employee self-organization, even if it does not include a current plan to act to address the employees' concerns. A single employee's activity could be deemed concerted when it involves posting a comment expressly including the topic of collective action, or posting a comment that seeks to initiate or induce group action.

What Social Media Activity Is Not Concerted Under the NLRA?

When an employee expresses his concerns on social media without seeking to induce group action, the activity may not be protected, even if it is published to fellow employees. Social media activities that may not be deemed concerted include an employee's posts complaining about the terms and conditions of employment that contain no language suggesting that he seeks to initiate or induce coworkers to engage in group action; posts expressing frustration regarding his individual dispute; and discussions expressing his individual discontent about his employer where fellow employees "like" the post or comment merely to express their support for his well-being.

How Can Protected Social Media Activity Lose Protection Under the NLRA?

An employee's protected social media activity can lose its protected status under the NLRA if the employee engages in egregious conduct, such as disparaging attacks, malicious defamation, or opprobrious conduct.

The employer shoulders a heavy burden in persuading the NLRB that the employee's conduct was so reprehensible that it should no longer be protected. In fact, the NLRB's three social media memoranda lacked a single instance where an employee's alleged disparaging attack, defamatory statement, or opprobrious conduct lost protection of the NLRA.

When Does an Employer's Disciplinary Action Violate the NLRA?

An employer violates Section 8(a)(1) of the NLRA if it interferes, restrains, or coerces employees in the exercise of their rights guaranteed in Section 7. An employer may unlawfully interfere with its employees' Section 7 rights by disciplining or terminating an employee for engaging in Section 7 activities; threatening to sue employees for engaging in protected activities; or discharging an employee to prevent future discussions of terms and conditions of employment.

What Remedies Are Afforded by the NLRA for Disciplining Employees?

If an employer terminates or disciplines an employee for engaging in protected social media activity, the employee may file an unfair labor charge against the employer. Should it be determined that an employer committed an unfair labor practice by interfering with an employee's Section 7 rights, the NLRB may impose various statutory remedies, including reinstatement of the employee, seniority and/or status readjustment, reinstatement of benefits, expungement of any disciplinary action or termination, and/or back pay.

Conclusion

An ounce of prevention is worth much more than a pound of cure. By carefully analyzing the NLRB's determinations of other company's actions in response to social media activity, an employer can (with the assistance of counsel) responsibly evaluate the lawfulness of employee social media activity and appropriately balance between employees' protected rights under the NLRA and protecting the employer from improper and unlawful employee social media use.

Additional Resources

• Nancy Flynn, The Social Media Handbook: Rules, Policies, and Best Practices to Successfully Manage Your Organization's Social Media Presence, Posts, and Potential 70 (2012) Heather Melick & Ethan Wall, Not too narrow, not too broad. Social media policies must be "just right," Inside Counsel (2012) Ethan Wall, NLRB and Social Media Policies, PR News (2013)