Last week, National Labor Relations Board Acting General Counsel Lafe Solomon issued a second report summarizing cases involving social media issues reviewed by his office. The report is a sequel to a similar report issued by the AGC in August 2011 – around the time we contributed a chapter on the subject to Jon Hyman’s excellent compilation “Think Before You Click: Strategies for Managing Social Media in the Workplace”. General Counsel Memorandum OM 12-31 (January 24, 2012) addresses fourteen (14) recent cases.
The press release announcing the report reiterates two points made in the earlier survey:
Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.
The Memorandum reports on these cases without any identifying information – party names, case numbers, locations, etc. – which somewhat limits its utility. This is especially so as the AGC concedes “that these cases are extremely fact-specific.”
The aforementioned Jon Hyman sees the report overall as “a mess.” He notes particular overreach in the Board’s treatment of an employer trying to assure employees, beyond any reasonable doubt, that its policy would not infringe upon rights protected by the NLRA:
Some believe employers can save themselves from the NLRB’s wrath simply by carving out section 7 rights from any social media policy. No so fast, says the NLRB. In one case, the NLRB even took issue with a “savings clause” in which the employer expressly told its employees that it would not interpret or apply its policy “to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”
Of Jon’s other conclusions, I agree most with #2 and #4. I think that what we are seeing is not so much a conscious decision by the Board to over-regulate employer response to social media communication, but rather the natural extension of the current Board’s efforts to broaden the scope of employee and union rights under the Act. The Board majority’s expansions of “concerted” activity (Parexel International LLC, 356 NLRB No. 82 (Jan. 28, 2011), “reasonable construction” in the context of the Lutheran Heritage Village-Livonia test, and the range of inflammatory conduct which will retain its protection, are woven both expressly and implicitly throughout the reasoning explained in this report. These developments will continue to have impact on all types of employer work rules and policies – not only social media policies.
But social media remains the “hot topic,” as the report puts it. Three social media cases are currently pending before the Board:
- Hispanics United of Buffalo, Case No. 3-CA-27872 (ALJ, September 2, 2011): The ALJ ruled that a Buffalo nonprofit organization unlawfully terminated five employees who had posted comments on Facebook in response to a co-worker's complaint about their job performance. The ALJ held that “[e]xplicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.” Moreover, the ALJ agreed with the General Counsel that the various Facebook postings at issue did not lose the protection of the Act despite the fact that some were profane and/or sarcastic.
- Karl Knauz BMW, Case No. 13-CA-46452 (ALJ, September 28, 2011): The Judge found that the employer maintained a number of overly broad workrules in violation of Section 8(a)(1) of the Act. The ALJ also held, however, that the employee's termination was lawful because the social media postings for which he was fired did not constitute protected activity
- Triple Play Sports Bar, Case No. 34-CA- 12915 (ALJ, January 3, 2012): The Judge found that the employer unlawfully terminated two employees for participation in a Facebook conversation regarding their employer’s wittholding of taxes. The ALJ held that one employee’s endorsement of a wall post via the “Like” annotation and another employee’s singular use of a profane epithet toward the employer occurred amid a discussion of their tax treatment, and were thus protected.
Check back for additional information about these cases as they proceed.