Employment Law Update

A year ago few would have questioned the right of an employer to discipline an employee who used his Facebook page, Twitter account or other social media platform to criticize his employer's business practices or to make derogatory comments about his employer, supervisor or co-workers. Those days are long over. In a previous Employment Law Update we discussed the unfair labor practice (ULP) charge filed by the National Labor Relations Board (NLRB) in October 2010 against American Medical Response (AMR), a Connecticut ambulance service that fired an employee who posted derogatory comments about her supervisor on Facebook. Other employees joined in the conversation and added comments of their own about the supervisor. The NLRB alleged that the employee's comments were protected "concerted activity" under the National Labor Relations Act (NLRA) and that the company's social media policy, which prohibited employees from making disparaging comments about the company, supervisors and co-employees, was overbroad. The case eventually settled before any administrative or judicial ruling was made.
Cementing the Protected Status of Cyber-Speech
The NLRA protects the right of employees to engage in so-called "water cooler" conversations about workplace terms and conditions. Many employers, however, believed that when employees broadcast their views to a wider audience on Facebook or other social media platforms they lose that protection. If any doubt remained about the NLRB's intent to protect concerted activities by employees on social media, a recent wave of ULP charges has ended all speculation. Since the AMR case, the NLRB has considered more than a dozen cases involving employee use of social media. Unlike the AMR case, most of the new cases involve non-union workplaces.
The NLRB has examined social media-related firings and discipline in a range of employment settings, from Wal-Mart to a small non-profit homeless shelter. The NLRB believes that employee social media posts that: (1) relate to the terms and conditions of employment, and (2) invite or arise out of co-worker comment or action will generally be protected – even when the post is critical of the employer or its practices. Some of the more significant charges and decisions are discussed below.
In September 2011, an NLRB Administrative Law Judge (ALJ) found that a non-profit agency, Hispanics United of Buffalo, violated the NLRA by firing five employees who it accused of harassing another employee with their Facebook posts. Lydia Cruz-Moore, a domestic violence case worker was critical of employees in the non-profit's housing department and told a housing department employee, Maria Cole-Rivera, that she was going to complain to the agency's executive director. Cole-Rivera then posted the following message on her Facebook page:

"Lydia Cruz, coworker, feels that we don't help our clients enough at HUB. I about had it! My fellow coworkers how do u feel?"

Cole-Rivera's post generated responses from other employees who defended their job performance and criticized working conditions, including workload and staffing issues. Hispanics United responded by firing the five employees who participated in the Facebook exchange, claiming that their comments constituted harassment of Cruz-Moore.
The NLRB charged that the Facebook discussion was protected concerted activity because it involved a conversation among coworkers about their terms and conditions of employment, such as staffing levels and work load. The ALJ agreed, holding that communications in response to a co-worker's criticism of their job performance were protected.

"Employees have a protected right to discuss matters affecting their employment amongst themselves. Explicit 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 [the NLRA]. That is particularly true . . . where at least some of the [fired employees] had an expectation that Cruz-Moore might take her criticisms to management."

The ALJ further held that "[i]t is irrelevant that the [fired employees] were not trying to change their working conditions and they did not communicate their concerns to" the employer.
In another case, the NLRB filed a ULP against a Chicago-area car dealer, Knauz BMW, for firing a salesman who criticized a recent sales event held by the dealership. Robert Becker and other employees complained at a sales meeting about the hot dogs and "Sam's Club" bottled water the dealership planned to serve at an event promoting a new BMW model. Becker complained that the lackluster offerings might impact sales and employee commissions. Later Becker posted mocking comments about the sales event. He also poked fun at another salesperson's error in allowing a customer's child to sit in the driver's seat of a vehicle, which resulted in the car rolling into a pond and injuring the customer. Becker posted pictures of the sales event and accident and other employees responded to his posts. Knauz fired Becker and claimed that the motive for his termination was his bad judgment in posting comments about the accident and that his posts about the sales event were not considered. The NLRB alleged that the firing was intended to discourage employees from engaging in protected concerted activities.
On September 28, 2011, an ALJ issued an opinion finding that Becker had engaged in protected concerted activities when he posted comments and photos about the sales event, because he and his colleagues had spoken at the sales meeting about how the inadequacies of the food might affect their compensation. Nevertheless, the ALJ credited testimony offered by the dealership and determined that the termination was due to Becker's comments about the accident, which was clearly not protected speech.
The ALJ did, however, find that several rules in Knauz's employee handbook were illegal, including provisions stating that "No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership" and prohibiting employees from participating in "unauthorized interviews" about the dealership or answering "outside inquiries" about employees. The ALJ required Knauz to post a notice "in a conspicuous place" for sixty days stating that it had "violated federal law," "was rescinding the violating work rules," and "will not in any like or related manner interfere with, restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act."
Other employee social media posts which the NLRB has found protected are described in an NLRB report on social media cases considered by the agency during the last year.
But Not All Speech Is Protected
The news for employers has not been all bad. In a series of advice memoranda, the NLRB's General Counsel's office found that some employees' social media posts did not constitute concerted protected activities. In May, the General Counsel found that an Arizona newspaper did not violate the NLRA when it terminated a reporter for repeatedly ignoring directives that he stop posting offensive statements on his Twitter account. The reporter poked fun at headlines crafted by the paper's copy editors, garnered complaints from a local TV station for a Tweet referring to "Stupid TV people," posted numerous Tweets about homicides in Tucson that were presumably intended to be humorous, and compared his discovery of the NFL's Red Zone channel to an adolescent boy's discovery of masturbation. The General Counsel found the comments unprotected because they did not relate to the terms and conditions of the reporter's job or seek to involve other employees in issues related to employment.
In July, the NLRB's General Counsel issued three further advice memoranda recommending dismissal of social media-related claims. In the first, JT's Porch Saloon & Eatery, the employer had an unwritten policy that bartenders do not share in waitresses' tips, even if they help with serving. A bartender complained about the policy in a Facebook message to his step-sister. He also called the saloon's customers "rednecks" and stated that he hoped they choked on glass as they drove home drunk. The General Counsel found that the statements were not protected because they were not made with or on behalf of any other employee. Instead, the comments were made solely by the employee in response to a question from his step-sister and no other employee discussed or responded to the posting.
In the second memorandum, Martin House, the employer was a residential facility for the homeless. The charging party was an employee who, while working an overnight shift, engaged in a Facebook conversation with two friends and made insensitive comments about the facility's residents. Again, the General Counsel found the communication to be unprotected because it did not involve any other employee.
The third memorandum, Wal-Mart, involved a customer service employee at a Wal-Mart store in Oklahoma. After the employee had a run-in with the store's new assistant manager, he posted on his Facebook page: "Wuck Falmart! I swear if this tyranny doesn't end in this store they are about to get a wakeup call because lots are going to quit!" One co-worker responded: "Bahaha like! :)." Another co-worker noted that the charging party seemed "wound up." ." A third-co-worker claimed she made a "hang in there" type comment. The charging party then engaged in a profanity-laced rant in which he referred to the assistant manger as a "super mega puta". The charging party was disciplined and warned that he might be terminated if the behavior continued. The General Counsel declined to take action despite that fact other employees responded to the posts. The General Counsel advised that protected comments "must look toward group action," while the charging party's Facebook postings were no more than "an expression of an individual gripe" with the assistant manager.
Finally, in October, the Associate General Counsel for the NLRB in the New York region issued an advice memorandum recommending dismissal of a ULP brought by an employee of Schultze, Roth & Zabel auctioneers. In early 2010, an IT supervisor in the charging party's department invited him to join the networking site, LinkedIn. The invitation asked the charging party for his job title and he replied with an obscenity. In February 2011, the charging party discussed with co-workers a wage and hour lawsuit brought by employees at another company who were challenging compensation policies similar to those at the Schultze firm. In April 2011, the company began reviewing its employees' LinkedIn posts as part of setting up its own LinkedIn site. The company discovered the charging party's obscene comment and fired him for disparaging the company in violation of its electronic communication policy. The Associate General Counsel found that there was no evidence the employer knew about the employee's wage and hour discussion with co-workers and that the employee's obscene LinkedIn response was not protected by the NLRA. Interestingly, although the company's communications policy was arguably as broad as the one in Knauz BMW, the Associate General Counsel simply stated that there was no allegation that the policy was unlawful and took no action regarding the policy.
Overbroad Employer Polices Are Subject to Attack
The NLRB also challenged a number of employer policies that it claimed encroached upon the right of employees to engage in protected speech about the terms and conditions of employment. A sampling of the type of restrictions on speech that the NLRB has charged violate the NLRA includes policies that prohibit employees from:
• Making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and or competitors.
• Posting pictures that depict the Company, its uniforms, logo, vehicles, brands or products without first obtaining permission.
• Engaging in "inappropriate discussions" about the company, management, and/or co-workers.
• Using social media to violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity.
• Posting any comment that constitutes embarrassment, harassment or defamation of the employer or any employee, board member or representative.
• Posting statements that lack truthfulness or might damage the reputation of the employer or its employees.
• Using the employer's name, address or other information on employee's personal profiles.
• Posting anything that the employee would not want their manager or supervisor to see or that would put their job in jeopardy.
• Posting any "personal information" regarding coworkers or company clients.
The NLRB's primary criticism of these policies is that they are overbroad and are reasonably susceptible to an interpretation that would restrain employees in their NLRA right to discuss the terms and conditions of employment. In the absence of limitations or examples of the type of conduct that is prohibited, the NLRB will likely continue to find such polices in violation of the NLRA.
What Should Employers Do?
While there is much about this area of law that remains to be developed, a few things are clear. First, the NLRB has given notice to employers – unionized, non-union, for-profit and non-profit – that it will protect the rights of all employees to engage in protected concerted activity under the NLRA. Second, many employees who had never heard of the NLRB a year ago now seem to be aware that they can complain to a federal agency if they are disciplined or terminated for their online activities. Third, nothing said on social media remains confidential. Co-workers, former employees, Facebook "friends", clients, competitors, the media and members of the general public have all informed employers about their employees' postings. The challenge for employers is to determine how best to respond when they discover their employee's objectionable statements.
Employers should review any policy that restricts employee activity on social media. Most policies could benefit from clarification. Employers should adopt policies that promote business objectives and the workplace environment, and discard vague and/or unnecessary restrictions on speech. Some companies are revising social media policies to include a specific disclaimer that the policy is not intended to infringe upon the right of employees to discuss the terms and conditions of employment. While a disclaimer is not a bullet-proof shield against NLRB action, it may assist an employer in a ULP where the parties' intentions are at issue.
In addition to crafting a well-worded policy, an employer must act in a way that does not unlawfully infringe upon its employees' NLRA rights. As noted, this area of law is unsettled. No court has yet weighed in on the legality of the NLRB's position. Until the issues are more settled, employers should proceed cautiously and consult with employment counsel before taking disciplinary action against an employee based on his/her on-line activities.
Finally, perhaps the best advice is to avoid overreaction. Carefully weigh the costs and benefits of discipline. Will it advance a legitimate business need; will it result in an improvement to your workplace, or is the discipline/termination likely to give undue notoriety to an otherwise insignificant and/or relatively unnoticed comment?
Social media is with us to stay for the foreseeable future and employees will continue to move towards online platforms as a mode of communication. Their once private gripes and criticisms, formerly shared with a small group around the "water cooler", are now being viewed by a broader audience. Employers may need to develop thicker skins and chose their battles wisely.