Feds Raise Questions About Employee Social Media Rights

According to guest blogger Brian D. Wasson, bosses may have to start developing thicker skins when it comes to their employees criticizing them online. That is, if the National Labor Relations Board has its way.

Brian D. Wassom is a litigation attorney in Southeast Michigan whose practice focuses on copyright, trademark, publicity rights, media law, and related subject matter. Brian blogs about the law of social and emerging media on Wassom.com and invites you to join his Twitter conversation on @bdwassom.

The National Labor Relations Board (NLRB) caused a stir in October 2010 by filing its first enforcement action related to social media.

Specifically, the Board alleged that American Medical Response of Connecticut, Inc. violated federal labor law by terminating an employee over her Facebook posts, because those posts— which included profane criticisms of her supervisor and prompted responses from co-workers— formed a “discuss[ion of] the terms and conditions of their employment” protected by the National Labor Relations Act (NLRA).

This action represented an expansion of what the Board considers “protected concerted activity” under the NLRA. The NLRB complaint also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees.

Many observers followed the AMR case with interest, hoping it would provide clear guidelines for employers’ social media policies. They were disappointed when the Board announced a settlement in February 2011. But employers didn’t have to wait long for the Board to take similar action in another case. Indeed, the NLRB has initiated a flurry of social media enforcement activity during the first half of 2011.

Although employers still have no clear-cut guidance in this area, these various enforcement actions are beginning to demonstrate where the NLRB sees the dividing line between protected online activity and fair game for employer regulation.

Social Media Is the New Forum for Sharing Employee Grievances

In April 2011, the Board settled two cases involving an employer who fired an employee over that employee’s social media posts. In one, online retailer Build.com fired an employee who criticized her employer and its alleged state labor code violations on Facebook. Like those at issue in AMR, the posts also drew responses from co-workers.

In the other, a Thomson Reuters Corp. employee tweeted that “one way to make this place the best place to work is to deal honestly with Guild members.” In response, she received a phone call at home from her Bureau Chief, informing her of the company’s policy “that we were not supposed to say something that would damage the reputation of Reuters News or Thomson Reuters.” The Board saw that phone call as designed to chill the employee’s protected activity.

Insulting Your Customers, As Opposed to Your Boss, Is Still Out of Line

At least once, however, the NLRB has sided with the employer. The Board agreed with the Arizona Daily Star’s decision to fire a reporter who posted multiple tweets on his work-related Twitter account that that the employer deemed unprofessional and inappropriate.

For instance, in one tweet he wrote, “You stay homicidal, Tucson ….” And another read, “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.” Unlike the prior cases, these tweets were not complaints about workplace conditions or management, and therefore could not be construed as “protected concerted activity.” They were simply offensive (not to mention highly evocative of Ron Burgundy’s slip-up in Anchorman).

How Far Will It Go?

More recently, the Board has announced its intent to file complaints against two additional employers over social media-based terminations. These cases are still pending.

In one, the New York nonprofit Hispanics United fired five employees. According to the NLRB’s press release, “[t]he case involves an employee who … posted to her Facebook page a coworker’s allegation that employees did not do enough tohelp the organization’s clients. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues.” Hispanics United considered the posts harassment of the coworker; the NLRB characterized them as a protected conversation about working conditions such as performance and staffing.

In the other, the Board alleged that the Knauz BMW dealership in Chicago violated the NLRA by terminating a salesman who posted photos and commentary on his Facebook page criticizing his employer for serving only hot dogs and bottled water at a dealer sales event. Although it does not appear that coworkers joined the conversation, the Board noted that some of them “had access to” the posts, which therefore made the comments protected concerted activity.

The Board’s apparently increased focus on social media may be due in part to a Memorandum issued by its General Counsel in April 2011. That Memorandum required all NLRB offices to seek advice from the General Counsel’s office in all cases involving employer rules related to “protected concerted activity using social media.” When the Board’s top lawyer goes out of their way to flag these cases as a priority, it’s a good bet that they will be more likely to show up on the regional offices’ radar as well.

Neither of these two most recent complaints involve employers who had written social media policies. Nor was there any distinction in how the Board treated union and non-union workplaces. But a pattern is becoming clear in each of these cases: where an employee’s online statements have anything to do with the conditions of his employment–including supervisors, coworkers, and even customer service issues–there is a chance that the NLRB will consider this protected speech that is off-limits from employer discipline.

Of course, it’s important to remember that none of these cases have yet been adjudicated; they were simply NLRB complaints, most of which were settled quickly. So we don’t yet know how an administrative law judge or court would respond to them. Nevertheless, employers may want to consider re-evaluating their social media policies in light of these ongoing developments.

Some Takeaways

  • Companies that don’t have a social media policy are tempting fate.
  • “Ready, fire, aim” should not be your first reaction to online criticism from an employee. Stop, take a breath, and realize that terminating the employee may come back to bite you.
  • If the online statement is directed at, or even accessible to, the employee’s co-workers, and it pertains at all to the employee’s superiors or conditions of employment, it may very well be something that the NLRB considers federally protected “concerted activity.”
  • Instead of punishing the employee, consider working with them to resolve the problem they’re complaining about.
  • Realize that a lot of the conversation happening online now is the same thing that used to happen around the water cooler. It may be more accessible now, but the same type of criticism has probably already been made offline. Negative opinions are inevitable, and sometimes the best response is simply to laugh them off.
  • Always consult your legal counsel before making a decision that could potentially expose you to liability.