NLRB memo sheds light on dos and don’ts for employers

Back in March, 2010, I pointed out that employees’ use of social media can create problems for employers. Now we can thank the Acting General Counsel of the National Labor Relations Board (NLRB) for recently issuing a helpful memo summarizing 14 NLRB decisions all involving (wait for it) the use of social media in the workplace.  The memo is short on analysis, much less any attempt to tie the cases together into overarching themes. But it’s a good read anyway, allowing even someone like me (whose primary area of expertise runs to the First Amendment more than to arcane employment law issues) to get a sense of the general rules and come up with some dos and don’ts.  

The primary focus of the NLRB decisions: negative employee commentary, usually about the employer, that shows up on Twitter, Facebook or other social media for all to see. Sooner or later, everybody has a bad day at work and snaps in some way. Take Christopher Cristwell, for example. One day the 25-year-old Starbucks barista finally had it up to here with annoying customers, so he wrote a song and uploaded it to YouTube (check out his Starbucks apron; try to ignore that it’s pretty much all he has on).  It’s kinda catchy. Higher ups at Starbucks didn’t think so, apparently.  It kinda got him fired.  

While this is an extreme example of an apparently disgruntled employee publicly expressing his disgruntlement, it’s clearly not unique or even rare. Blogs and social media like YouTube, Facebook and Twitter have created new venues for the employee rant. Back in the day, complaints were more confined: a couple of folks blowing off in the breakroom, or maybe an employee crying in his beer with friends, and that’s the end of it: they vented, they moved on, that was that.

But when the complaint shows up in social media, there’s a permanent, totally public record of the complaint.  Given that, employers may wonder just how far they can go to keep their employees in line and preserve the company’s image.

Some answers may be found in longstanding legal tests and principles of Section 7 of the National Labor Relations Act (NLRA). How do those tests and principles get applied to new situations? That’s where the NLRB’s decisions, and the acting GC’s memo, come in handy.  

Historically, the NLRA protects employees’ speech if the employee is engaged in (a) protected activity or (b) concerted activity, as long as the activity is (c) not “opprobrious”. The 14 cases shed light on what the NLRA means by each term and provide some examples of what can be disciplined and what cannot.

Protected Activity

Section 7 of the NLRA exists primarily to assure employees some manner of communicating concerns about the conditions of their employment. Ordinarily, an employee can successfully challenge disciplinary action arising from his or her expressive activities if those activities were “protected” under the accepted interpretations of the act. Speech implicating or relating to terms and conditions of employment is generally “protected”. For example, if an employee chats with coworkers or speaks publicly in preparation for a discussion with employers relating to the job, that is likely to be “protected”.

The NLRA has said that what constitutes “protected activity” does not change if the employee’s comments are communicated via the Internet. Protests of supervisory actions in a Facebook post or Tweet? Pictures posted on-line of oneself carrying a picket sign in front of the company logo or wearing shirt with the company logo during a protest? Both activities would probably irritate your employer – but both are protected.

Concerted Activity

Concerted activity exists when an employee acts with or on the authority of other employees and not solely by and on behalf of himself/herself – think one employee trying to rally co-workers into group action. It could also include an individual employee bringing group complaints to management’s attention, but only if that employee’s statements are a legitimate outgrowth of a group’s complaints.

The application of “concerted activity” in the context of social media is the area that may require the closest review in practice. Is that lone Tweet an idle complaint (unprotected because it is not “concerted" in nature) or is it the first attempt to gather other workers sharing similar concerns (and therefore protected)? Is activity “concerted” per se if others comment on your Facebook post? (Spoiler alert: not always) It’s very contextual and fact-specific.

Thankfully, the NLRA’s 14 cases offer plenty to chew on. For example, the following qualified as “concerted activity”:

  • An employee posting a complaint to Facebook after conversations with others about the issue or after another employee has specifically requested that management be contacted;
  • Four workers posting concerns and anecdotes relating to a fifth worker’s complaints in advance of a discussion with supervisors;
  • An employee’s post expressing the sentiment of a group after the employee tells several employees of the plan to take action and then following through with that action.

The following were determined not to involve “concerted activity”:

  • A newspaper reporter airing personal grievances and criticizing other media and companies on a work-related Twitter account;
  • An employee posting a complaint when (a) the topic never previously discussed with coworkers, and (b) no coworkers responded to the post, and (c) there were no employee meetings or any attempt to initiate group action.
  • A complaining Facebook post complaining of an individual where the only responsive comments are all in the nature of “hang in there”.

“Opprobrious” comments

Of course, there are limits to what an employee can say and how he or she can say it, even when engaged in protected and/or concerted activity.

One test the NLRB applies (dubbed the “Atlantic Steel” test) involves public outbursts by an employee against a supervisor. The test: were the employee’s statements “opprobrious”? Since “opprobrious” isn’t a word most of us hear in everyday conversation, here are some of the factors considered in that analysis: 

  • The time, place and manner of the discussion. Was it in the workplace, during work hours, in a manner that does or is likely to interrupt the work of other employees? If so, the employer is more likely to be permitted to penalize it. Of course, the development of social media has complicated this consideration. While many people use social media at work, most social media commenting use still occurs on private time – but even comments posted on any employee’s own time can still create a negative buzz in the office or among customers or competitors. 

(Blogger observation: It’s fair to assume – and I think this is important – that employers still have significant leeway in determining what an employee can and cannot say in a Twitter feed or blog page or on the employer’s Facebook page. On the other hand, the employer’s ability to discipline an employee for statements made on a personal account appears to be limited. But one thing that seems to be unique to the media world is the extent to which individual social media accounts aren’t really individual. A recent on-line discussion focused on the extent to which some journalists are “branding” themselves. By doing so, aren’t media figures – journalists, radio hosts, personalities, etc. – also holding themselves out as representatives of the media companies (and their brands) for which they work?  Something for our core broadcast, print and Internet clients to chew on . . .)

  • The subject matter of the discussion. Is it directly related to the “protected” activity (see above)?
  • Was the protected concerted activity provoked by unfair labor practices?  If so, this greatly favors the employee. 
  • Finally, what is the nature of the outburst?  This is the one that often gets the employee in the most trouble, especially in the relatively unedited, uncensored, stream-of- consciousness social media world. Based on the NLRB’s review of cases, we know that simply swearing is not enough to put someone on the wrong side of this line, nor is name calling. “Liking” someone’s egregious comment probably won’t do it either. In fact, at this point, verbal or physical threats are the only clear examples of opprobrious conduct that can be disciplined.

Another NLRB test (this one’s called the “Jefferson” test) applies when an employee makes disparaging comments about an employer or product to third parties. In such cases, the employee is protected if the communication involves an ongoing labor dispute and is not excessively disloyal, reckless or maliciously untrue.

Another Look at Employment Policies

I have previously suggested that employers address issues relating to use of social media in their company handbooks and policies specific. I still think that’s a good idea, especially for media companies that are actively using (or trying to use) social media to engage with listeners, readers or viewers, promote programming, events and contests, or simply distribute information through new channels. But these NLRB decisions show that company policies along these lines must be drawn precisely.  

What does that mean? According to the NLRB, policies cannot create a “chilling effect” on employees’ speech by imposing rules that:

  • explicitly restrict protected activities;
  • could cause employees reasonably to believe their protected activities would be limited;
  • is promulgated in response to protected union activities.

From the NLRB, some examples of unduly restrictive provisions:

  • A prohibition on posting pictures in any media (this is overbroad because it would prohibit employees from showing pictures of protected activities);
  • Requiring “respectful and courteous communications”, or prohibiting “sensitive”, “embarrassing”, “harassing”, “inappropriate” or even “defamatory” statements or discussions;
  • Prohibiting the posting of private or confidential information without defining those terms (this could be construed as preventing free discussion of wages and other terms and conditions of employment) or the posting of information identifying the employer in personal profiles. 

And some examples of restrictive provisions that are permissible:

  • A narrowly drawn and sufficiently specific provision prohibiting employees from pressuring coworkers to become Facebook “friends”, if it is created with the goal of  preventing harassing conduct;
  • Limiting who can speak on behalf of the company, especially when further clarified with references to “crisis situations” and “timely and professional” communications.

So what are the new lessons to be learned here? My recommendations from 18 months ago are still valid. However, the recommendation that you “protect your company’s brand or image and relationships” changes somewhat. More than ever, words matter – both the words that employees use and the words you put in your social media policies or employee handbooks. You definitely need to consult an attorney if you’re going to revisit and rewrite your policies or if you’re thinking about taking action against an outspoken employee.