THE NATIONAL LABOR RELATIONS BOARD RULES THAT
FACEBOOK® COMMENTS ARE "PROTECTED ACTIVITY"
On October 27, 2010 the National Labor Relations Board's Hartford regional office issued a complaint against a Connecticut ambulance service for "illegally" terminating an employee who posted negative remarks about her supervisor on her personal Facebook® page. In addition, the NLRB's complaint alleged that the company's social media policy was "overly broad".
According to a News Release published by the NLRB's General Counsel on November 2, 2010, the employee, a member of Teamsters Local 443 was asked by her supervisor to prepare an investigative report regarding a customer complaint made about the employee's work. In response, the employee apparently requested representation by her union concerning the report, but the supervisor denied the request. When the employee left work, she voiced her opinions about the supervisor on her personal Facebook® page, from her personal computer. Co-workers apparently posted supportive comments which prompted the employee to post additional negative comments...
In response, and in accordance with its internet policies, the company terminated the employee. The employee filed an unfair labor practices charge with the National Labor Relations Board, alleging that her conduct constituted "protected activity" under the National Labor Relations Act, 29 U.S.C. §§ 151-169 ("the Act") and that her termination was thereby unlawful.
The NLRB conducted an investigation and concluded that indeed the employee's conduct constituted protected concerted activity and the company's policies "... contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors." Additionally, the NLRB found that the company's prohibition against employees "depicting the company in any way over the internet without company permission..." , interfered with the employees' exercise of their right to engage in concerted activity.
The issue is scheduled for hearing on January 25, 2011.
APPLICATION FOR THE NON-UNION EMPLOYER
The case raises important concerns for employers, particularly with respect to employer policies for the governance of their employee's use of social media. But almost more importantly, the NLRB appears to have again expanded the scope of what constitutes "protected activity" under sections 7 and 8A of the Act.
In this case, the employer's workforce was unionized at the time the "offensive" conduct occurred. However, employers commonly presume that if they are not unionized, the Act does not control their particular workplace conduct. In fact, the Act protects non-union and union employees alike against discrimination based on union-related activity or group action ("protected activity"). Section 7 of the Act sets forth the following protections for nearly ALL employees:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title, emphasis added].
The "mutual aid and protection clause" contained in Section 7 essentially protects employees from retaliation for activity which is designed to create better working conditions within a particular job or employer. However, simple gripes employees make about their personal situation are generally not sufficient to invoke the Section 7 protections. Rather, the activity must "concerted". "Concerted activity" includes organized employee protests as well as spontaneous, informal employee conduct.
In this case, the NLRB has found that both the employer's policies and its response to the employee's broadcast complaints, constituted a violation (unfair labor practice) of Section 7, most likely because the policies had a "chilling effect" on the employees' ability to engage in activity for "mutual aid and protection".
APPROVED SOCIAL MEDIA LANGUAGE
In December 2009 the NLRB published an Advice Memorandum on appropriate Social Media policies. In particular, the NLRB was asked to determine if the policy of Sears Holding Company ("Sears & Roebuck", "K-Mart") had a "chilling" affect on employees' section 7 rights.
In response to Sears' policy, the NLRB found it did not violate Section 7. The salient parts of the policy which the Board approved included the following language:
In order to maintain the Company's reputation and legal standing, the following subjects may not be discussed by associates in any form of social media:
- Company confidential or proprietary information
- Confidential or proprietary information of clients, partners, vendors and suppliers
- Embargoed information such as launch dates, release dates and pending reorganizations
- Company intellectual property such as drawings, designs, software, ideas and innovation
- Disparagement of company's or competitors' products, services, executive leadership, employees, strategy, and business prospects
- Explicit sexual references
- Reference to illegal drugs
- Obscenity or profanity
- Disparagement of any race, religion, gender, sexual orientation, disability or national origin
In reaching its decision, the NLRB first confirmed that the policy must be read "as a whole", without excising particular sections which, if read in a vacuum, might having a chilling effect on Section 7 activities. With this in mind, the NLRB concluded that
... the Policy as a whole provides sufficient context to preclude a reasonable employee from construing the rule as a limit on Section 7 conduct.
The Board went on to state,
[t]he Policy covers a list of proscribed activities, the vast majority of which are clearly not protected by Section 7 ... [and] ... appears in a list of plainly egregious conduct, such as employee conversations involving the Employer's proprietary information, explicit sexual references, disparagement of race or religion, obscenity or profanity, and references to illegal drugs.
Finally, the NLRB noted that the preamble to the policy explains that the Policy's purpose is to "protect the Employer and its employees" and is not designed to "restrict the flow of useful information".
RECOMMENDATIONS
Unfair labor practice charges based on mutual aid and protection allegations are not common in union-free shops. Nevertheless, employers should be cognizant of both their written employment policies as well as management response to any activity which suggests "group" involvement.
Employment and labor laws are continually evolving, particularly as the global market place expands and technology outpaces our communication standards. Regular review of company policies, written documents and practices with appropriately qualified legal advisors is essential to limiting liability and creating both a safe and legally sound workplace.