Monday, September 26, 2011

The NLRB and "Facebook Firings"

Since President Obama’s appointees to the National Labor Relations Board constitute a majority, the NLRB has taken an aggressive approach to employer work rules and policies which, in the NLRB’s view, restrict employees in the exercise of protected concerted activity on social media sites.  In tandem with this aggressive approach to enforcement, the NLRB has advanced a very broad view of when employees’ social media activity constitutes “protected concerted activity.”  

On August 18, 2011, the NLRB published a Report of the Acting General Counsel Concerning Social Media Cases.  Anne Purcell, “Report of the Acting General Counsel Concerning Social Media Cases”, Office of the General Counsel, Division of Operations-Management, Mem. OM 11-74 (August 18, 2011).  This report described selected NLRB actions related to social media.  Among the common features of the actions were that the employee conversations, however offensive, occurred in a broader context of a discussion relating to working conditions.  Id.  Another common feature was that the posts all involved discussions between multiple employees, either online or offline, even if the online post did not result in a discussion.  Id.  A third common element was the lack of a social media policy, or the perceived over breadth of an existing social media policy.  Id.

In the NLRB’s view, an employee’s social media activity is protected as “concerted action” so long as it touches on a term or condition of employment, and falls short of making a physical threat.  This view was largely endorsed recently by the recent decision in Hispanics United of Buffalo, Inc. v. Ortiz, No. 3-CA-27872 (NLRB Sept. 2, 2011)Hispanics United dealt with the termination of five employees for postings to one of the terminated employee’s Facebook pages.  That employee had posted a comment naming a co-worker who believed that her department did not do enough to serve their clients and soliciting input from her co-workers.  The employee added that she had “about had it!”  Id. at 4.  The employees who participated in this discussion were terminated three days later, purportedly for violating the employer’s anti-harassment policies.  In Hispanics United, Administrative Law Judge Arthur Amchan concluded that the employees’ Facebook discussions were protected because they represented the “first step towards taking group action.”  Id. at 8.  The ruling was based on the employees’ right “to discuss matters affecting their employment amongst themselves.”  Hispanics United, No. No. 3-CA-27872 at 9.

Neither did the sometimes-vulgar nature of the discussion make it so “opprobrious” as to take it outside the protections of the National Labor Relations Act.  While some posts lapsed into profanity – “what the f. .. Try doing my job I have 5 programs” or “Tell her to come do [my] fucking job n c [and see] if I don’t do enough, this is just dum [sic.]” – the NLRB characterized it as “objectively quite innocuous” in a Memorandum dated August 18, 2011.  Anne Purcell, “Report of the Acting General Counsel Concerning Social Media Cases”, supra.  ALJ Amchan appeared to substantially agree with the NLRB’s assessment, finding that simply mentioning an employee’s name together with these comments did not transform the conversation into harassment.  ALJ Amchan accordingly found that the employer’s anti-harassment policy was not violated and that the employer had no rational basis for concluding that it had been. 

This discussion of employer policies is typical of the NLRB’s focus in other social-media related actions that it has initiated.  One of the NLRB’s primary concerns has been with what it views as “overbroad” restrictions by employers contained in their social media policies.  The NLRB repeatedly targeted policies which might be interpreted to restrict employees’ ability to engage in protected concerted activity through the use of social media.  While it would be premature at this time, based on the dearth of decisions on this subject, for employers to undertake a wholesale restructuring of their social media policies, it is certainly advisable that employers ensure that their social media policies are tailored to target only social media usage that implicates legitimate business interests.  Employers may also want to consider including a clause carving social media activities that qualify as concerted activity out of any restrictions they place on social media usage.  Preferably, these steps would be taken together – a truly overbroad policy is unlikely to be saved by a limited carve out, and a narrow policy which nonetheless restricts concerted activity may still attract attention. 

This focus on social media policies may portend an attempt by the NLRB to effect wider-reaching changes to employers’ ability to control the use of their electronic resources.  In late April, 2011, the NLRB’s Hartford Regional Director participated in a panel discussion for the Connecticut Bar Association.  During that discussion, the Regional Director revealed that the NLRB is preparing to set the stage to reverse the NLRB’s December 2007 decision in Register Guard.  In that case, the NLRB held that an employer can ban employee use of corporate e-mail systems for non-business reasons as long as the policy is enforced in a non-discriminatory manner.  The Guard Publishing Co. d/b/a The Register-Guard, 351 NLRB No. 70 (2007).  If reversed, employers’ ability to limit the use of social media by employees on employer electronic resources could be severely undermined.

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