As we have detailed in this blog and elsewhere, the National Labor Relations Board (“NLRB” or the “Board”) made social media cases a priority in 2011. As demonstrated in a recent memorandum released by the Board’s Acting General Counsel, this trend is set to continue in 2012. Memorandum OM 12-31 summarizes 14 recent social media complaints received by the Board, and details the General Counsel’s conclusions on each case. While the report reiterates many of the Board’s previous pronouncements regarding social media, it also raises new questions about employer regulation of employee social media use, as well as permissible social media policy language.
A New Standard to Evaluate Employee Social Media Comments?
Section 7 of the National Labor Relations Act (“NLRA”) gives employees the right, among other things, “to engage in . . . concerted activities for the purposes of collective bargaining or other mutual aid or protection” (emphasis added). The Board has repeatedly held that criticizing one’s employer as part of a group effort to improve working conditions or in an effort to initiate group action is one of these “protected concerted activities.” In recent years, the Board has applied this principle to find that employees have the right to discuss the terms and conditions of their employment on social media sites.
Until now, the Board has applied settled precedent to new social media technology. For instance, under Meyers Industries, an employee’s actions are concerted if the employee acts “with or on the authority of other employees and not solely by and on behalf of the employee himself.” 268 NLRB 493 (1984). As detailed in his latest report, the General Counsel has continued to apply this principle by declining to prosecute complaints where an employee took to social media to air unprotected “individual gripes,” which were not concerted or intended to initiate group action.
Even if an employee’s online comments are concerted and relate to terms and conditions of employment, an employer may take disciplinary action if the employee has somehow lost the NLRA’s protection. In the social media context, the Board has addressed this issue by applying two well-settled cases. The first, Atlantic Steel, establishes a four-factor test to evaluate whether an employee’s outburst against a supervisor is so “opprobrious” that it loses the NLRA’s protection. 245 NLRB 814 (1979). The second, Jefferson Standard, holds that employee communications to third parties may lose protection if they are sufficiently disloyal, reckless, or maliciously untrue. 346 U.S. 464 (1953).
Atlantic Steel and Jefferson Standard both predate social media, and neither case’s analysis perfectly fits the mixed public/private nature of social media posts. The Board seems to acknowledge this point in its summary of a recent case where an employee was terminated for posting comments criticizing her employer on Facebook. In analyzing her comments, the General Counsel applied a “modified Atlantic Steel analysis that considers not only disruption to workplace discipline, but that also borrows from Jefferson Standard to analyze the alleged disparagement of the employer’s products and services.” While this hybrid standard may signal a shift in the Board’s application of existing precedent to social media, the extent of this shift remains to be seen.
New Questions Regarding Social Media Policies
The General Counsel’s report also raises new questions about employer social media policies. As with all work rules, the Board will find a social media policy unlawful if it explicitly restricts protected concerted activities. Further, a rule that does not explicitly restrict protected concerted activities will still be unlawful if employees would reasonably construe it to prohibit protected activities. (The Board will also find an otherwise lawful rule unlawful if it was promulgated in response to union activities, or if it has been applied to restrict protected activities. See Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).) These principles are not new, but the General Counsel’s report raises new concerns about social media policies.
As we have detailed in previous postings, the Federal Trade Commission’s (“FTC”) endorsement guides require employers to ensure that employees disclose “material connections,” including employment status, when discussing their employer’s products or services using social media. See 16 C.F.R. § 255.5. For this reason, some social media policies require employees to disclose their employment status when discussing their employer online, and to state that they are not speaking on their employer’s behalf. However, the General Counsel’s report found a similar policy unlawful, noting that “requiring employees to expressly state that their comments are their personal opinions and not those of the Employer every time that they post on social media would significantly burden the exercise of employees’ Section 7 rights.”
Fortunately for employers, the General Counsel’s report also offers some guidance to revise potentially unlawful disclosure requirements in social media policies. In another case, the General Counsel considered a policy that had a separate “Promotional Content” section requiring employees who were engaged in personal social networking to indicate that their views were their own and not their employer’s. In the same “Promotional Content” section, the policy prohibited employees from publishing any promotional content, which it defined as content “designed to endorse, promote, sell, advertise, or otherwise support the Employer and its products and services.” Because employees would not consider protected communications regarding working conditions to promote or advertise on their employer’s behalf, the General Counsel found the rule to be lawful, noting that employees would not reasonably construe it to restrict protected content.
Until now, the NLRB has applied existing labor law to social media questions. However, given recent hints that existing precedent is not always a perfect fit with social media issues, we may see a move toward new or modified principles and rules guiding the Board’s views on social media. Similarly, we expect the Board to continue to refine its approach as it attempts to harmonize its positions with those of other federal agencies that regulate social media, such as the FTC. As always, Haynes and Boone’s SoMe blog will continue to monitor and note these developments as they occur.