The talk of the employer community lately has been the National Labor Relations Board’s highly controversial final rule that severely and substantially modifies certain procedures in representation cases. The Board claimed that the final rule, approved December 22, 2011, was designed to reduce unnecessary litigation in representation cases and thereby enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation.
Acting General Counsel Lafe Solomon recently issued an NLRB Report clarifying the standards to be applied to claims involving employee use of social media. The Report, which summarized recent cases concerning employer policies restricting employee use of social media, like Facebook, as well as cases involving discipline imposed in response to postings on social media, makes clear that the Board will apply traditional analysis to issues concerning social media.
With respect to employer policies addressing the use of social media, the cases show that the Board’s focus will be on whether the policy in question “would reasonably tend to chill employees in the exercise of their Section 7 right” to engage in protected concerted activity. Employer policies will be found to be unlawfully overbroad to the extent they directly prohibit using social media to discuss terms and conditions of employment, or could “reasonably be construed by employees as prohibiting” such discussions. Policies that prohibit “disparaging” comments about the employer, “inappropriate” references to the work environment, and “unprofessional” or “disrespectful” postings are unlawfully overbroad because they could reasonably be construed by employees as prohibiting complaints about the work environment or discussions about the terms and conditions of employment. To pass NLRB muster, employers should focus their social media policies on the same type of activities that are prohibited in the workplace, such as harassment, threats and discrimination, and should also include a specific savings clause to make clear that the policy is not intended to limit or interfere with the right of employees to discuss wages, hours and the terms and conditions of employment.
With respect to cases involving discipline or the discharge of employees for comments posted on social media, the Board applies traditional analysis to determine whether the comments at issue are “protected” because they concern the terms and conditions of employment as opposed to unprotected personal griping, and whether the postings are “concerted” because they seek or result in co-worker comments. The cases cited in the Report show that postings about personal gripes at work or disparaging comments about the manner in which the employer conducts its business will not be protected, whereas comments addressed to working conditions, including the actions of supervisors and the terms and conditions of employment, are protected. The cases also show that the Board will engage in a traditional analysis to determine whether or not a posting is “concerted” by looking at such factors as the intent or purpose of the posting (personal rant/complaint or attempt to engage other employees) and the response to the posting (whether or not co-workers participated in an on-line discussion). An employer’s reaction to postings will also be subject to traditional “surveillance” analysis in which the Board will look at the manner in which the employer learned about the social media postings at issue; that is, whether it unlawfully obtained information about the postings surreptitiously, or lawfully learned about them because a manager or supervisor is a “friend” invited to read the postings. All of these factors must be considered in connection with a determination to discharge an employee based on social media activity.