New England Biz Law Update
Employers — including law firms — need to take a closer look at their social media policies and how they enforce those policies in light of recent actions taken by the National Labor Relations Board.
Over the last few months, the NLRB has responded in several instances after employees were terminated because of their activities on social media sites such as Twitter and Facebook. (See sidebar on the board’s response.)
While employees have always discussed their employers and jobs at the local bar or watering hole, “it’s now easier for employers to find out what employees are saying about them,” said Boris Segalis, a partner at the InfoLawGroup LLP in New York City.
And when employees complain via Twitter about their supervisor, or criticize the choice of food at a work-sponsored event on Facebook, they may be engaging in activity protected by federal law, according to the NLRB.
These actions are a result of “a convergence of several factors, with the increasing adoption of social media, the fact that employers are still getting a grip on employee usage of it and the NLRB deciding to take a more aggressive stance,” said Daniel Schwartz, a partner at Pullman & Comley in Hartford, Conn. “There are almost 700 million people on Facebook — at least a few of them are going to be union members.”
With social media in the sights of the NLRB, employers should review their policies and think carefully about enforcement, Schwartz said.
“Right now, there have been a bunch of complaints, and we’re still waiting for some judicial or board decisions addressing these issues,” he said.
Policy and enforcement
In light of the NLRB’s recent moves, experts agree that employers should have a social media policy in place, and that it should be reviewed in light of the NLRB’s recent moves.
“Involve the employees in the creation of the policy,” Schwartz said. “Let them feel like they have some input, and be sure to communicate the policy so everyone is aware of it.”
A policy should cover issues like protecting trade secrets, said Brian Hall, a partner at Porter Wright in Columbus, Ohio, who focuses on employment law issues, but “it’s very clear that the NLRB is taking a negative view of any social media policy that includes non-disparagement type language in it. So if employers are creating a policy right now, they should avoid using that type of terminology.”
He counsels clients who have disparagement clauses in their social media policies to add a disclaimer that “the policy will not be interpreted or enforced in a manner contrary to your ability to [exercise] your rights under the NLRA.”
Just as important as having a policy in place is enforcement, Hall said, and “being realistic about it.”
Schwartz agreed.
“Decide discipline on a case-by-case basis,” he said. “Not all tweets are created equal, and not all uses of Facebook should lead to being fired.”
Employers who overreact to an employee’s social media usage could end up with their punishment going viral, Schwartz said.
“Employers need to be careful not to overreact about social media.”
And keep in mind that the enforcement actions “don’t mean that employees can say anything they want about the employer,” Segalis noted. “Employees can’t defame a supervisor or use slurs, or make false or defamatory statements, and if they lash out at a supervisor but aren’t communicating with other employees then the statements are likely not protected.”
But the NLRB has taken a broad approach to what constitutes protected, concerted activity, Segalis said.
Sidebar:
Recent NLRB activity
The NLRB has initiated several actions against employers who have taken employment actions based on an employee’s use of social media, but it has also refused to take action where it determined an employee’s behavior didn’t constitute protected activity:
• In February, the NLRB settled charges with a Connecticut ambulance company that fired an employee for criticizing her supervisor on her Facebook page. In its complaint, the NLRB claimed that American Medical Response of Connecticut violated federal law because the employee was engaged in protected activity when she posted the comments about her supervisor.
Under the terms of the settlement, the company agreed to revise its social media policy to “ensure that [it does] not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that [it] would not discipline or discharge employees for engaging in such discussions,” according to the NLRB.
• A reporter with the Arizona Daily Star filed a charge with the NLRB after he was terminated for tweeting comments about his employer. Newspaper employees were encouraged to use social media in an effort to drive readers to its site, and the employee’s tweeting was done using his work computer and company-provided cell phone. The employee’s Twitter account was linked to his Facebook and MySpace pages so that when he tweeted, the message was posted on the other sites as well.
Although the employee was warned about making comments critical of the Daily Star’s television staff, he tweeted things like:
“What?/?/?/? No overnight homicide? WTF? You’re slacking Tucson,” in his capacity as a public safety reporter.
The NLRB Division of Advice said the employer’s actions did not violate the NLRA because the employee did not engage in protected concerted activity and was instead discharged for misconduct.
The decision not to take action makes sense, said Brian Hall, a partner at Porter Wright in Columbus, Ohio, who focuses on employment law issues.
“The reporter was really tweeting things that by almost anybody’s definition were offensive and did not implicate the workplace,” he said.
• The NLRB filed a complaint against Hispanics United of Buffalo after five employees of the nonprofit were fired over Facebook postings.
According to the complaint, an employee posted to her Facebook page allegations by a co-worker that employees did not do enough to help the organization’s low-income clients.
Other employees responded to the initial post by defending their job performance and complaining about their workload and staffing issues. According to the NLRB, Hispanics United terminated the five employees who responded to the initial post, claiming that their comments constituted harassment of the first employee.
In its complaint, the NLRB said the Facebook discussion was “protected concerted activity … because it involved a conversation among co-workers about their terms and conditions of employment, including their job performance and staffing levels.”
• Most recently, the NLRB filed a complaint after a Chicago area BMW salesman was terminated for a Facebook post criticizing the quality of food and beverages at a dealership event.
The salesman complained that sales commissions would suffer as a result of the sub-par event, which was held to promote a new BMW model. He went on Facebook, posting pictures and commenting about how only hot dogs and bottled water were offered to customers who attended the event. A manager asked the salesperson to remove the posts (which were accessible by other employees), and although he immediately complied, he was terminated, according to the NLRB.
The employee’s Facebook posting was a protected concerted activity, the NLRB said in a press release, “because it involved a discussion among employees about their terms and conditions of employment, and did not lose protection based on the nature of the comments.”
This action “troubles me the most,” said Hall, who is also the author of the Employer Law Report blog. To reach a protected concerted activity, “you have to connect A to B to C to D,” eventually leading from hot dogs to sales commissions, he said.
