NLRB Increases Enforcement Activity Against Discipline of Employees for Use of Social Media

We last reported on the NLRB  social media agenda when its Harford Regional Office issued a complaint last year against a company that terminated an employee for posting disparaging comments about her supervisor after an incident at work. That case settled earlier this year, with the company agreeing to change provisions in its social media policy that prohibited employees from making any online remarks about the company or its supervisors. Those statements, according to the NLRB, violated the National Labor Relations Act (NLRA), which prohibits employers from restricting their employees from discussing terms and conditions of employment.

Since then, there has been a spate of activity at the NLRB on the social media front, including the issuing of two new complaints in the last three weeks.

Most recently, on May 20 the Chicago regional office issued a complaint (PDF) against a car dealer for discharging a salesman for his posting of concerns on his Facebook page about the dealer’s handling of a sales event. According to the NLRB, the employee posted photos and commentary critical of the quality of food and beverages at the event to promote a new car model, complaining that sales commissions could suffer as a result. The following week, management asked the salesman to remove the posts, which he did. Still, the employee was discharged for his actions.

This came on the heels of a complaint issued by the Buffalo regional office (PDF) on May 9 against a nonprofit social services organization for terminating five employees for allegedly commenting on one of the employee’s Facebook page about working conditions. According to the NLRB, the employee posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, the nonprofit discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

Yet another complaint was averted in late April when a media company and its union settled after the NLRB had indicated that it would file a complaint in response to an accusation by the union that the employer reprimanded an employee who discussed work-related issues online. In response to a "tweet" (a post to the social networking site Twitter) by a manager asking employees to respond about how to make the company "the best place to work," the top employee union representative tweeted: “One way to make this the best place to work is to deal honestly with Guild members.” According to the employee, the next day the company’s bureau chief called her at home and menacingly told her that the company had a policy that employees were not supposed to say anything that would damage the company’s reputation.

These positions are contrasted somewhat by an April 21 memorandum issued by the NLRB’s Division of Advice (PDF) that advised the Phoenix regional office that a discharge of a newspaper reporter for posting “unprofessional and inappropriate tweets” to a work-related Twitter account did not violate the NLRA. Through his Twitter feed, which identified him as an employee of his newspaper, the reporter poked fun at his newspaper’s sports headlines, made unprofessional comments about his public safety beat (such as “What?!?!? No overnight homicide? WTF? You’re slacking Tucson”), and criticizing a misspelling in a local TV station’s tweet by writing “Stupid TV people.” The Division of Advice stated that even if the newspaper’s policy on employee communications were unlawfully overbroad, the newspaper had not violated the NLRA because the tweets for which the employee was discharged did not relate to the terms and conditions of employment or seek to involve other employees in issues related to employment. This was the case even though in response to his earlier unprofessional tweets the company orally warned the employee that he was to refrain from all work-related Internet postings, as the ultimate discharge was not due to postings protected by the NLRA.

Noteworthy is the subtle conflict in the approach taken by different factions of the NLRB.  In the April 21 memorandum, the Division of Advice rejected an unfair labor practice charge even where the newspaper orally warned its reporter that he should refrain from all work-related Internet postings, whereas in the case against the other media company, the NLRB office was poised to bring a complaint based on a phone call to an employee about her union-related tweet. Indeed, based on the novelty of the issue and lack of precedent, the NLRB’s Acting General Counsel distributed an internal memorandum last month (PDF) stating that regional offices are required to consult with the Division of Advice before proceeding against employer rules prohibiting, or discipline of employees engaging in, social media. That said, no case involving social media has yet been adjudicated even by an administrative law judge, so there is uncertainty as to the exact legal standard that will govern.

The take-away here is that the NLRB, as well as unions, are being vigilant in investigating and bringing complaints against companies who discipline employees based on comments they make on social media that can be construed to be about terms and conditions of employment. This is the case even where the social media posts at issue have been critical of or embarrassing to the company. The NLRB has taken the position that employee discussions that take place online are no different than discussions around the water cooler, and that employees are protected from discipline for any comments in which they criticize or vent about their jobs. This presents a real issue for employers, as unlike fleeting water cooler conversations, postings on social media are forever fixed in the annals of the Internet and can be retrievable and searchable by others, airing and maintaining a company’s petty internal disputes and dirty laundry for the world to read. As a result, companies should examine their social media policies to ensure that employees cannot be sanctioned for Internet posts protected by the NLRA, and should consult with counsel before disciplining an employee based on any post to social media or the Internet, especially where the post can be interpreted as relating to union activity or terms and conditions of employment.

Authored by Bret Cohen