Alert: Social Media Policies and the National Labor Relations Board

On August 18, 2011 the Office of the General Counsel of the National Labor Relations Board (“NLRB”) published a report of the “Acting General Counsel concerning social media cases within the last year.” The report issued by Lafe E. Solomon chronicles the Board’s decisions in 14 cases recently decided. According to a study released by the U. S. Chamber of Commerce dated August 5, 2011, the National Labor Relations Board, has reviewed 129 cases since 2009 involving social media and the workplace, most filed this year.

The decisions in the 14 recent cases reported by the Office of the General Counsel of the NLRB illustrate the expansive view that the Board is taking on the definition of “Protected Concerted Activity” and mark some important considerations for employers when adopting social media policies. The decisions indicate that for many companies a review of existing policies is in order and dictate the need for a case by case analysis of enforcement of social media policies to employment situations. Protected Concerted Activity in the context of the National Labor Relations Act means that the employee must be engaged in activity “with or on the authority of” their fellow employees and not solely on their own behalf. Meyers Industries, 281 NLRB 882 (1986).

The cases reported by the Acting General Counsel for the most part involve termination of employment for employee postings on Facebook or similar social media. The theme throughout the decisions is that there are “emerging issues concerning protected and/or concerted nature” of the postings and the legality of the employer’s policies in restricting employee contacts with the media or in the public domain.

Protected concerted activity exits when an employee undertakes efforts to improve working conditions and terms of employment. If an employee is engaged in protected concerted activity, an employer may violate the NLRA by taking an adverse employment action in response. The recently released report from the NLRB’s General Counsel clearly states that the NLRB will apply the Meyers Industries standard to determine if social media postings by employees constitute a protected concerted activity as opposed to the employee acting on his or her own behalf. One of the challenges that a review of this nature presents is that oftentimes co-workers who participate in the same social media outlet (i.e. Facebook friends) will post their approval of the posting which may morph individual activity into Protected Concerted Activity.

Discussions that in the past would constitute either airing the laundry of the company or which may have taken place around either the water cooler or other less public forums are now being placed on Facebook to be shared with the world. The NLRB in applying the Atlantic Steel test, found that a policy that precluded an employee from making negative and disparaging comments when discussing the company, the employee’s supervisors, coworkers, or competitors was unlawful in violation of Section 8(a) (1) of the Act. The Atlantic Steel test (Atlantic Steel Co., 245 NLRB 814 (1979)), holds as protected, postings which are not “opprobrious” (publically degrading the employer). The NLRB has historically interpreted that measurement quite narrowly.

The result is that if the employer knew of the concerted nature of the employee’s activity; the concerted activity was protected by the Act; and the adverse employment action at issue (e.g., discharge) was motivated by the employee’s protected concerted activity the employment action violates the employee’s rights under the Act.

Some examples reported by the Board’s General Counsel include the following:

A case where the Board found a violation of a car dealer’s employee rights under Section 7 when the employee posted comments and photographs of a sales event on his Facebook page where he was critical of the food choices.

The Board found that several employees had discussed their frustration about the car dealer’s planned event in an employee meeting with their supervisor. The employees had felt that since the car dealer was selling expensive cars that it should be providing more substantial refreshments to the patrons than planned. The employees discussed among themselves that they were concerned that the inexpensive refreshments would “send the wrong message to their clients and negatively affect their sales and commission.” After the meeting the employee in question had told his coworkers he would put photos of the event on his Facebook page. Along with the photos he posted comments that were critical of the inexpensive food and beverages provided.

The Company found out about the posting from a part-time co-worker who was a “friend” on Facebook with the employee who posted the photos and comments. The management of the dealership asked him to remove the photos and told him that they were “embarrassing to the dealership, its founder and CEO” and subsequently fired the employee.

The Board found that his postings were protected since “

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