It seems as if the intersection of workplace regulation and social media is addressed in this forum just about every other week.

Ironically enough, that progressive frontier exists largely because of the lead taken by the National Labor Relations Board (“NLRB”) in one of the most traditional fields of our practice – labor relations.  And so it’s no surprise that the NLRB has been at it again lately, continuing its onslaught of scrutiny against employers, their social media policies, and potential violations of the National Labor Relations Act (“NLRA”) resulting from an employee’s online social media activity.

A little over two weeks ago, an employee who worked for the Arizona Daily Star newspaper as a “crime and safety beat” reporter complained to the NLRB that his employer unlawfully discharged him for posts he made to his Twitter account, some of which criticized the newspaper’s copy editors.

Even though the newspaper had no social media policy and actually encouraged employees to use Twitter, it met with the employee after hearing about these “tweets” and instructed him not to air his grievances or comment about the employer in a public forum, nor to make derogatory comments in any social media forum that might damage the goodwill of the newspaper.

Disregarding at least the latter of those instructions, this employee continued tweeting about the Tucson, Arizona area, making multiple remarks about homicide and the city he was assigned to cover.  After the employee was first advised to no longer tweet, he was then fired for not living up to the employer’s expectations of professional courtesy and conduct.

Surprisingly, despite its recent track record of coming down on employers who do anything which might be considered as chilling the rights of employees to complain about working conditions, the NLRB concluded in this case that it would not file a complaint because it felt the employee did not engage in concerted activity.

In so concluding, the NLRB felt that the employee’s conduct did not relate to terms or conditions of employment.  It also felt that the employee’s activity was not concerted because it did not involve others, and this was probably the biggest factor in the NLRB’s decision not to pursue a complaint in the case.

In many of the more high-profile instances when the NLRB has gone after an employer for disciplining an employee based on his or her use of social media in recent weeks, it has often focused on the fact that other employees commented or joined in on the initial critical postings or comments.

Still, many of the warnings that the newspaper gave the employee when it first addressed this issue could have arguably violated the Act.  Strangely enough, though, the lack of a formal social media policy with those limitations might have actually helped the employer in this case.  As it was, the NLRB recognized that the employer was simply responding to an individual’s clearly inappropriate tweets, given his position, rather than doing anything on a broad scale to chill concerted activity about working conditions.

In a normal week, the Arizona Daily Star case would have been newsworthy enough.  That is, if not for the fact that, just days later, the Regional Director of the Buffalo, New York NLRB office issued a complaint against a non-profit, social services employer – Hispanics United of Buffalo, Inc. – who discharged five employees after one of them complained about working conditions on her Facebook page, and the others responded in support.

According to the NLRB, that activity constituted concerted discussion about terms and conditions of employment – including working conditions and staffing levels – and was therefore protected under Section 7 of the NLRA.

The employer took the position that the 5 employees were terminated for reasons unrelated to protected, concerted activity – specifically, because they were harassing a co-worker in and outside the workplace.  According to the Hispanics United organization, the Facebook statements did not involve working conditions.

“The NLRB’s Complaint fails to acknowledge HUB’s obligation, under both federal and state law, to protect its employees from harassment and to ensure a nonhostile work environment,” HUB also said in a statement.

While all of the prior complaints the NLRB has issued in this arena have settled before trial and only time will tell if this complaint will be the first to go to hearing, the Hispanics United of Buffalo’s position in defending the claim is very intriguing because it touches on the frequently complicated issue of what obligations employers have to their employees for non-work conduct outside the workplace.  Throw the progressive nature of social media into that equation and you have quite a firestorm.

It’s true that social media policies are not a one-size-fits-all proposition from employer to employer, but generally speaking, even non-work, off-the-clock conduct is arguably fair game for regulation in such a policy.  Moreover, many employers’ anti-harassment policies prohibit the harassing of co-workers in settings outside the workplace – including online, which could include what one employee says about a fellow employee on Facebook or Twitter.

All of those considerations make the Hispanics United case probably the most interesting one to-date of all of the ones addressing the intersection of Section 7 rights and social media, with the possible exception of the first trail-blazing complaint in this arena from the Hartford Regional Office of the NLRB late last year against AMR ambulance company.

Recently, the Director of the Region that issued that complaint offered some significant insight into the way the Board as a whole is looking at these issues.  He indicated that the NLRB intends to continue taking a very broad approach when evaluating whether an employee’s social media postings constitute protected, concerted activity – saying that almost anything on or in social media other than physically threatening activity would probably be protected.

Reaffirming the guidance we often espouse to employers, he also indicated that statements in an employer’s social media policy disclaiming any intent to violation Section 7 would be considered by the Board in their calculus of whether to bring a complaint.  According to that Regional Director, the more general and broad your policy, the more specific your disclaimer needs to be.  In contrast, if your policy contains very narrow limitations on an employee’s use of social media, the disclaimer may suffice if it merely indicates that the policy is not intended to violate the NLRA.

Finally, and most notably, the Regional Director indicated that the Board’s efforts to crack down on employers who discipline employees for engaging in concerted activity by using social media will likely lead to an attempt to try and reverse the Board’s noteworthy 2007 opinion in Register Guard, where it held that an employer can lawfully ban an employee’s use of his or her employer’s e-mail system for solicitations as long as the policy does not discriminate on its face and is enforced equally.

Register Guard was decided by a Republican-controlled Board, so it’s not surprising that the current Democrat-led Board members would like to reverse it.  Whether they are able to use the current spate of complaints surrounding social media as a basis to do that, however, remains to be seen.

In fact, about the only certainty in this area is that there will likely be many more of these cases to come.  For now, it goes without saying that union and non-union employers alike need to engage in a constant review of their social media policies  – advisably, with the assistance of capable legal counsel – to ensure the language in them isn’t likely to put the employer in hot water with the NLRB when it comes to restricting employees’ Section 7 rights.

Stay tuned.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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