Early Lessons From the NLRB on Social Media
May 7, 2013
(As Published in The Legal Intelligencer)
By Amy L. Rosenberger
Lydia Cruz-Moore didn't like the way her co-workers did their jobs, and she wasn't afraid to say so. When she told one of them, Marianna Cole-Rivera, that she planned to talk to the boss about it, Cole-Rivera reached out to her colleagues for their input. She posted the following on her Facebook status: "Lydia Cruz, a coworker feels that we don't help our clients enough at [employer]. I about had it! My fellow coworkers how do u feel?"
The co-workers responded, objecting to Cruz-Moore's criticism. Cruz-Moore posted her own response, accusing Cole-Rivera of lying. Then she reported the exchange to her boss — the employer's executive director — who had her print out the Facebook exchange and turn it in. The executive director thinks it sounds like bullying and harassment by Cruz-Moore's co-workers, and the employer has a zero-tolerance policy for that sort of thing. But can she lawfully fire the co-workers for their online activity?
As workplace conversations that used to take place by the proverbial water cooler are increasingly occurring online, employers are facing this question more frequently. Anxious to protect their reputations, and to shield themselves from exposure to harassment claims, many have sought to curb employee expression online, whether by applying existing work rules or issuing new social media policies. A small but growing body of case law from the National Labor Relations Board is setting the boundaries of employer authority to curb employee online expression about the workplace.
The NLRB, which enforces the National Labor Relations Act, made headlines across the country in early 2011 when its Office of General Counsel decided to pursue two unfair labor practice charges contesting employer reprisals against employees for their social media posts. Both cases ultimately settled, but the media attention they received sparked renewed interest in the NLRA's protection of employee expression about the workplace.
Over the next year-and-a-half, the NLRB Office of General Counsel Division of Advice reviewed dozens of charges and issued memoranda (available on the board's website at www.nlrb.gov) outlining the application of existing principles under the NLRA to online employee communications. The board itself has thus far had occasion to rule in a handful of cases involving employee online activity, the most recent of which, Hispanics United of Buffalo, 359 NLRB No. 37 (2012), involved Cruz-Moore and her co-workers.
Section 7 of the NLRA grants employees (with or without a union) the right to engage in "concerted activities for the purpose of ... mutual aid or protection." This right is enforceable under Section 8(a) of the NLRA, which prohibits employers from interfering, restraining or coercing employees who exercise their rights under Section 7, or from discriminating against employees because of their protected activity.
The NLRB has long held that employee communications that amount to concerted activity for mutual aid and protection, having to do with wages, hours or terms and conditions of employment, is protected under the NLRA and so cannot be restricted by the employer. This includes not only situations where an employee acts with or on the authority of other employees, but also efforts to initiate or prepare for group action.
Applying this decades-old rule, the NLRB in Hispanics United ruled that Cole-Rivera and her four co-workers were engaged in protected activity when they objected to Cruz-Moore's threats to report them to the boss. According to the board, Cole-Rivera's Facebook posts "had the clear 'mutual aid' objective of preparing her co-workers for a group defense to [Cruz-Moore's] complaints."
In another recent ruling, Karl Knauz Motors, 358 NLRB No. 164 (2012), a majority of the board affirmed an administrative law judge's determination that the employee's dismissal was lawful. In that case, the employer, a BMW dealership, fired a salesman because of his posts on Facebook about an accident at a neighboring Land Rover dealership also owned by the employer. These posts had nothing to do with the employee's wages, hours or terms and conditions of employment and so were not protected.
EMPLOYER SURVEILLANCE OF PROTECTED ONLINE ACTIVITY
Another area where employers may run afoul of the NLRA is through unlawful surveillance of Section 7-protected activity, or creating the impression of such surveillance. However, an employer does not engage in unlawful surveillance where a member of management is invited to observe the activity.
So, when Cruz-Moore's boss asked her to print out the Facebook exchange among Hispanics United employees and turn it in, did she engage in unlawful surveillance of protected activity? Although this was not an issue raised in the case, the answer is probably not, as long as she did not coerce Cruz-Moore to do so. In Frontier Telephone of Rochester, 344 NLRB 1270 (2005), the board held that no impression of surveillance was created where a supervisor told employees he knew about a message on a password-protected union website, because "we think that a reasonable employee would assume that [the supervisor] lawfully learned of [the] message exactly the way [he] did — through public dissemination by another website subscriber."
It appears, then, that no unlawful surveillance would be found where a co-worker with access to a post voluntarily shows the post to the employer. The Division of Advice has also found no unlawful surveillance where the employee "friends" a supervisor, as the employee has invited the supervisor's presence at the communication. However, it remains to be seen whether the board will find unlawful surveillance where an employer or supervisor coerces a co-worker to provide access to the employee's online posts.
SOCIAL MEDIA POLICIES
Many employers have taken a proactive approach to the social media phenomenon by adopting policies to restrict employee conduct on the Web. While it may be wise to provide employees with clear rules about the limits of acceptable online expression about the workplace, employers must be careful to steer clear of rules that tend to chill employees in the exercise of their Section 7 rights. Although the full board has yet to rule on a social media policy case, a May 2012 report from NLRB Acting General Counsel Lafe Solomon, Memorandum OM 12-59 (May 30, 2012), summarized a series of memoranda from the Division of Advice involving social media policies. The report is a must-read for any employer drafting a social media policy.
The Division of Advice applies existing case law on employer work rules that prohibit or chill employees from engaging in Section 7-protected activity. A rule will be found to unlawfully chill-protected activity if: (a) employees reasonably would construe the rule to prohibit such activity; (b) the rule was issued in response to union activity; or (c) the rule has been applied to restrict protected activity.
Generally, the more expansive the social media policy's prohibitions, the more likely it will be considered unlawfully overbroad. An example of one such policy is described by the Division of Advice in Giant Eagle, 6-CA-37260 (June 22, 2011). The policy prohibited employees from referencing personal information of co-workers, clients, partners or customers without their consent. The Division of Advice concluded that the rule could reasonably be construed to prohibit discussion of wages and other terms and conditions of employment. It also found that a rule prohibiting use of employer logos, photographs of an employer facility, equipment, brand or product without permission may reasonably be construed to prohibit posting of pictures of the employee carrying a picket sign in front of the employer's premises, or wearing a T-shirt with the employer's name or logo while peacefully handbilling or engaging in other protected activity. Moreover, the inclusion of a "savings clause" stating that nothing in the policy should be construed to limit NLRA-protected rights or other lawful conduct will save an otherwise impermissibly broad social media policy.
On the other hand, in the same case, the Division of Advice decided that the policy lawfully prohibited employees from "pressuring" co-workers to participate in social media communications, because such a rule "is sufficiently specific in its prohibition against pressuring co-employees and clearly applies only to harassing conduct" and "cannot reasonably be interpreted to apply more broadly to restrict employees from attempting to 'friend' or otherwise contact their colleagues for the purposes of engaging in protected, concerted or union activity."
Generally, rules that provide specific examples of clearly illegal or unprotected conduct are less likely to be considered unlawful, as they could not reasonably be construed to cover protected activity. For an example of a social media policy that the Division of Advice found to be lawful, see the policy attached to Solomon's report.
Given the sheer volume of charges filed with the board involving activity on social media, it is unlikely that we have heard the last word on how the NLRA's protections apply. Employee and employer advocates alike would be well advised to keep an eye on the board as the law in this area continues to develop. •