Barclay Damon
Barclay Damon

Legal Alert

Social Media is the New Water Cooler

Social Media in the Workplace

The National Labor Relations Board (“NLRB”) has issued three reports in the last twelve months regarding what the NLRB characterizes as the “hot topic” of social media. Because many provisions in the National Labor Relations Act (“NLRA”) protect most private sector employees, even if they are not union members, the reports are relevant to almost all employers.

Section 7 of the NRLA, which protects the right of employees to organize a union, also specifically gives employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” [emphasis added]. The test to determine whether “concerted activity” is protected under the NLRA was established in Meyers Industries (Meyers I), 268 NLRB 493 (1984), and Meyers Industries (Meyers II), 281 NLRB 882 (1986). Under the Meyers Test, the question is whether the activity is “engaged in with or on the authority of other employees” or “solely by and on behalf of the employee himself.”

It is sometimes difficult to determine when activity crosses the line from an individual complaining about working conditions to concerted activity with other employees. The good news is that the recent NLRB Reports from the General Counsel summarize NLRB decisions involving social media and provide guidance on what types of employer social media policies are viewed by the NLRB as impacting Section 7 rights. The bad news is that the NLRB has taken some aggressive positions which means that employers may need to modify their social media policies and tread more carefully when deciding to terminate employees for social media activities.

Just as employees’ discussions at the water cooler in the past about their terms and conditions of employment were protected as concerted activity, so too such discussions on social media such as Facebook are also protected.

Whether or not employee discipline for social media messages is lawful or not hinges on several factors. First, the online discussions must involve terms and conditions of employment, such as complaints about working conditions, treatment of fellow employees, time schedules, inadequate supplies and the like. In one case, when an employee was terminated for posting comments on Facebook that were offensive to the employer’s customers and other employees, the termination did not violate the NLRA because the comments did not address the employee’s working conditions.

Second, the posting must result in an online discussion with other co-workers, not merely individual griping. Alternatively, the posting must “seek to initiate or to induce or to prepare for group action.” For example, in one case, the employees discussed quitting together in protest, which the NLRB deemed to be protected activity. Similarly, the NRLB found it to be unlawful when an employer terminated an employee in an attempt to preemptively prevent future employee discussions regarding terms and conditions of employment.

Not all social media cases involve the social media website Facebook. In one case, an employee posted online letters to the editor as well as blog entries critical of his employer’s management style and alleging unfair labor practices. The NLRB dismissed the employer’s claims of defamation and found the employee’s statements to be concerted activity protected under the NLRA.

On the other hand, not all social media postings by employees complaining about their workplace or their fellow employees are protected. In one case, the NLRB found that complaints about a co-worker’s job performance “had only a very attenuated connection with the terms and conditions of employment” so that even if it was concerted activity, it was not protected under the NLRA. In several other cases, an employee’s posting resulted in comments only by friends and relatives, not co-workers, and therefore did not constitute “concerted action,” even in one case where one co-worker “liked” the employee’s post.

Similarly, if the complaints were just individual gripes (such as about a co-worker’s irritating habits), not an attempt to initiate group action, they are not concerted activity protected under the NLRA.

Before taking disciplinary action against an employee for online activity, employers must be careful to determine if the online discussion is protected concerted activity.

In addition to discussing when an employee’s actions constitute protected concerted action, the NRLB has also found other employer policies, most of which are common in many companies’ employee handbooks, may violate the NRLA.

By way of example, the policies which the NRLB recently has found to be unacceptable include:

  • Media Policies which regulate employees’ statements to the media or on the internet.
  • Non-Disparagement Policies prohibiting disparaging remarks about the employer. 
  • Confidentiality Policies prohibiting disclosure of confidential information. 
  • Trademark Use Policies regulating use of the employer’s trademarks.

The NRLB has also recently challenged employment at-will disclaimers that are typically found in employee handbooks. In that regard, two non-union employers were required by the NLRB to remove the disclaimers from their handbooks and post notices assuring employees about their NLRA rights.

If you have not reviewed your employee handbook, including your social media policy recently, now is the time to do it. We can assist in modifying your handbook and, although there are increasing risks for employers arising from the prevalence of social media, a well-drafted employee handbook, properly trained supervisors, and consistently applied policies can create positive employee environments and at the same time minimize the risks of litigation.

If you have any questions on the content of this legal alert, please contact the Hiscock & Barclay lawyer with whom you normally work or any attorney in our Labor & Employment practice area.