When Workers Post and Tweet
The pace of rulings being handed down by the National Labor Relations Board, the federal body that adjudicates issues related to the National Labor Relations Act, has been dizzying to say the least. Perhaps it was inevitable that the NLRB would hear a series of cases pertaining to social media posts at a time when Facebook has 850 million users, but the employee-friendly rulings have employers walking on eggshells.
"Eggshells" would be an appropriate name for a new multi-player electronic game application for human resource departments, one that covers the various scenarios in which employers can be taken to task for violating new NLRB guidance on social media as it relates to Section 7 of the National Labor Relations Act.
That's the section of the Act that protects concerted activity employees engage in when discussing working conditions such as wages or benefits, and violations can be costly; in one case, an NLRB administrative law judge ordered an employer to reinstate five employees and pay back their wages.
While Section 7 applies both to union and non-union employees, some non-union shops have proceeded as though it doesn't apply to them, something they now do at their own peril. According to Rebecca Cook, general counsel for The Employer Group, in the context of non-union employees, it applies to activities that are called concerted activities for the purpose of collective bargaining. In the context of non-union employees, it applies to the mutual aid and protection of other employees.
Barring something that is harassing or otherwise inappropriate, things of a racial or sexual nature, employees have the right to make such posts. "Section 7 covers almost all non-supervisory employees, or non-managerial employees, in the workplace," Cook said. "So that is a huge section of employees, a huge group."
In the past year, the NLRB has ruled on 14 disputes involving social media postings. They have been summarized in two Memorandums of Understanding, the most recent posted on the board's website on Jan. 24. Some of the NLRB cases involved derogatory comments – derogatory to supervisors – and others pertained to uneven implementation of policies, but most related to content that employees posted on Facebook, which appears to have replaced the water cooler as the place where labor dishes the dirt on management. In most cases, employers got themselves into trouble with well-intentioned but overly broad policies, making it difficult to provide employees with any guidance as to what is allowed.
Given the legal minefields created by social media, we asked two local attorneys and a staffing and benefits executive what advice they have on revising the employee handbook in the age of social media. The first version of the employee handbook predated email and the Internet. Employee Handbook 2.0 dealt with issues associated with e-commerce and communications. The third edition, Employee Handbook 3.0, is trying to keep pace with the revolution, and evolution, in social media.
"These are unprecedented times with respect to what we are seeing at the NLRB, and the impact of social media policies that people may have in their handbook," said attorney Daniel Barker, a partner with Constangy Brooks & Smith. "Those policies may be used against employers if there are any union organizing campaigns or any other issues relating to the NLRB.
"If you have something in your handbook on your social media policies that isn't going to pass muster with the NLRB, they can use what's in your policy as a basis to find that you are hostile to employee-protected activity, and therefore use that as a basis to find that you've discriminated against employees based on their protected activity."
The guiding light
The first shoe dropped when the NLRB ruled, in connection with a Connecticut case, that posting a negative remark about your supervisor on your Facebook page, a remark that drew supportive responses from co-workers, was protected activity. The employee, who worked at American Medical Response, an ambulance service, posted remarks following a work-related incident. She was fired, prompting her to file a claim alleging that AMR illegally fired her and denied her union representation during an investigatory interview.
In determining that the Facebook postings constituted "protected concerted activity," the NLRB determined the company's Internet posting policy was overly broad. This overly broad broadside has been a recurring theme in NLRB rulings, so we asked our employment law experts for key pieces of employer guidance.
1. Section 7 protections are not just for union shops. They never have been, but non-union companies often treat them as though they pertain only to unionized workforces, according to Jane Clark, chief operating officer for QTI Human Resources. "What I think is especially chilling is that many private employers who have non-union workplaces have thought they didn't need to worry about the National Labor Relations Act," Clark said, "but this has made it very clear to employers that it is something they need to worry about. Even in a non-union setting, they need to worry that none of their policies, procedures, or practices are chilling employees' Section 7 rights."
2. Beware the blanket prohibition. According to Clark, when employers initially began addressing the issue of social media and where it abuts the workplace and workplace rules, they tried to cover everything with blanket prohibitions, completely outlawing any disparaging remarks about the company, its practices, or the employees. "The National Labor Relations Board has really made it clear that any sort of blanket prohibitions, down to some pretty detailed and seemingly innocuous prohibitions, are prohibited," she said. "If they have a social media policy and have a blanket prohibition against any disparaging comments, employers would think, 'I want to control what is being said about me out in social media,' and they can't have that prohibition."
An adjunct to that relates to prohibitions against disclosing confidential, sensitive, or non-public information about the company. "That to me is particularly upsetting because now it seems as though to have that type of prohibition, you have to present it in a context with some detailed examples of information that would be deemed confidential," Clark said.
3. Logos and brands aren't completely protected. Many social media policies prohibit use of a company logo, or similar service mark, or even the company name, but the NLRB has ruled against a blanket policy on that, too. As long as employees are engaged in concerted activity protected by Section 7, an employer cannot discipline an employee for using a company symbol.
4. It's about concerted activity, stupid. A key for meeting the concerted activity test is that it can't be an isolated gripe or grievance or putdown. It has to be a discussion between two or more employees and it has to pertain to workplace conditions, including pay or benefits. "Now they can have that discussion virtually via Facebook," Clark noted, "and it's no longer now when they are sitting at home on their work computers. They can post from their mobile devices, and it can be pretty contemporaneous. Somebody can post something, somebody else can respond with a post almost immediately."
According to Clark, "respond" is the operative word. "Even if I would post something and my co-worker and Facebook friend would hit a 'like comment,' if they would not have the responsive post that indicated it pertained to the general workplace or two or more people, then it would not be protected," she noted. "An individual gripe isn't protected.
"In one case, a BMW dealership held a client appreciation event where they served hot dogs and bottled water from a warehouse grocery store. After the event, employees complained to a manager that the type of people who buy BMWs are not going to be impressed by hot dogs and bottled water from a warehouse, and that it would affect their ability to meet sales quotas and impact their pay. An employee went home and posted pictures of the hot dogs on Facebook, and that was deemed to be protected, concerted activity because other employees chimed in and said, 'Yeah, you're right. We're not going to be able to meet our sales incentives.'
"The activity carries some risk for employees because had nobody responded, it probably would not have been construed as concerted activity. There is no dispute about whether it pertained to terms and conditions of employment."
5. Don't expect safety language to offer protection. A lot of companies are including in their policies statements to the effect that if an employee posts an opinion on social media, it should include language that the opinion is that of the employee, not the company. To most employers, this meets the test of reason; however, the NLRB has ruled that this can be overly burdensome to an employee and potentially chill their Section 7 rights.
Another safety provision used in corporate social media policies states that none of the policies is intended to prohibit Section 7 activities. The NLRB has said that kind of blanket language is not sufficient to put employees on notice of what type of activity is allowed and what type of activity is not allowed. "It looks like they are leaning toward more specific examples and clearer language," Cook said.
There is some disagreement on this point. Barker (Constangy, Brooks & Smith) believes a proper disclaimer can go a long way. "A well-written disclaimer that the policy is not intended to restrict protected activity can go a long way in helping maximize the chances that your policy, if legally challenged, would be found lawful," he stated.
What's an employer to do?
Clearly, employers need to tread carefully into this area, avoiding knee-jerk reactions. Our legal experts offered the following tips:
1. Keep your policy simple and easy to read. Too often, employers issue policies that are so long that no employee is ever going to read them, noted Barker. "I favor policies that remind employees to use good judgment and to not forget about the employer's general conduct rules just because they are using the Internet," he said.
2. Do not assume that just because you don't like what employees might post that it's your right to discipline them for what they write on a social media site. Employers often think the doctrine of at-will employment gives them license to discipline an employee for any personal conduct they do not like. "The problem for employers is that this legal principle runs 180 degrees counter to the way that many of them think," Barker stated. "Employers that do not understand the law may find themselves on the wrong end of a legal claim. Employers often think that they can discipline employees for disloyalty. However, an employer's concept of 'disloyalty' often is protected activity under the NLRA."
There are limits, he added. For example, employers may be able to prohibit employees from spreading malicious falsehoods about the employer or others. These exceptions are extremely nuanced, and it does not mean that all untruthful statements are unprotected.
3. Don't forget about Wisconsin's law that prohibits employers from discriminating against employees who use lawful products away from working premises and on non-work time. Barker said public employers should keep in mind that they may not restrict an employee's First Amendment rights. Those rights have limits, as employers may restrict employees' speech that is a part of their official job duties.
4. Even if you have a sound policy, be sure to implement it fairly. Cook referred to a case involving Delta Airlines, where the policy was applied differently for men and women. "The Delta incident involved a female flight attendant who was 'termed' without warning or other discipline for posting pictures on her blog of employees in Delta uniforms," Cooked explained. "She filed a sex discrimination suit for the unequal and inconsistent application of the Delta work rule. "You just have to be careful, not only with the definition, but with the implementation. There are a number of different factors to consider."
5. Don't just rely on your employment law attorney or your human resources professional. Given the continuing advance of social media, and the pace at which cases have come before the NLRB, work with both types of advisors when crafting your social media policy to ensure that you have all the bases covered.
Know the players
Another factor that should enter into a company's approach to social media policy is that President Obama has made several labor-friendly appointments to the NLRB. They should expect more rulings that can be construed as favorable to workers, so your HR policies with respect to Section 7 should reflect that reality.
"They have to consider several questions," Clark said. "Who is appointing people to the NLRB? What is the composition of it? That really has some impact."
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