Since 2010, the NLRB has been issuing rulings concerning employee rights and social media. Employers need to understand the NLRB perspective and rulings to minimize employee complaints.
By Joshua Ferdinand

One of the unexpected complexities of social media has been its use by employees, in and out of the workplace, to make negative comments about the workplace, co-workers, or employers. In 2010, the National Labor Relations Board (NLRB) entered the picture when employees began formally protesting employer actions taken against them in response to social media postings or activities the employers deemed unacceptable.

Since then, a number of NLRB rulings have been issued that make it clear that employees have the right to engage in protected activity under the National Labor Relations Act (Section 7) and that includes the use of social media. The rulings have been controversial, often protecting an employee’s right to publicly post harsh criticism of an employer, but employers are bound to adhere to the decisions and guidance or face a myriad of employee complaints and fines.

Understanding the NLRB perspective and decisions is necessary in order to develop appropriate policies and procedures.

The Fine Line: A Chilling Effect
Over the last six years, the NLRB has been dealing with a plethora of employee complaints in which they claimed their protected rights were violated through inappropriate employer actions taken as a result of the employee’s use of social media. The NLRB applies the National Labor Relations Act (NLRA Act or Act) in its consideration of employee complaints. The NLRA Section 7 protects employee discussions about wages, working conditions, hours, union organizing, and communication for mutual aid and protection. One of the important concepts is whether employer policies or actions chill protected speech under the Act.

It has been made clear through a series of rulings that communication through social media has the same protection under the NLRA as face-to-face communication. The evolution of NLRB rulings on social media cases is complex, consisting of the case decisions, three NLRB Acting General Counsel reports, and guidance given to regional offices of the NLRB.

The rulings are too many to list here, but a common theme runs through all the decisions. Employers naturally believe they have the right to prevent employees from making derogatory remarks about their employer, the workplace or coworkers.

The NLRB makes it clear that employees have the right to engage in “protected concerted activity,” and employers cannot restrict it in any way. Protected concerted activity, Section 7 of the NLRA ACT, allows employees to discuss the terms and conditions of employment with coworkers, including wages, working hours and work performance. Individual employee complaints are not considered concerted activity. In some situations, employees were fired or disciplined in some other manner after posting comments on Facebook, Twitter, or other sites.

There is often a very fine line between what is and what is not “concerted.” NLRB decisions in the last couple of years have addressed the use of specific language. For example, the case of Pier Sixty, a New York City catering company, involved a server using his iPhone to send an expletive-laden message about his supervisor to his Facebook page. The message ended with a directive to “Vote YES for the UNION.” The caterer was fired after being told his Facebook post violated company policy and was egregious, inappropriate and defamatory. The NLRB found that the post was concerted activity, and despite the foul language, was legally protected. One of the reasons the language was protected was because supervisors often used profanity when speaking to staff. Context does matter.

Confusion Reigns
In a recent 2016 case, Chipotle had a corporate policy under “Confidential Information” that said the “…improper use of Chipotle’s name, trademarks, or other intellectual property is prohibited.” The NLRB General Counsel alleged that the policy violated Section 7 rights because it would, in effect, prohibit employees from displaying the logo with a big red “X” over it while engaging in protected concerted activity, such as a protest against working conditions. An administrative law judge did not agree and reasoned that employers can protect their proprietary interests.

However, the NLRB ruled in a different case that a social media policy cannot prohibit employees from using an employer logo in any manner.

The takeaway is that a social media policy can prevent improper use of a logo if the restriction is narrowly defined to protect employer property rights and does not limit the use of the logo when the employees is conducting protected activity.

Confused? Employers are struggling to develop social media policies that protect employer rights without violating employee rights to conduct protected activity. One of the first steps an employer should take before drafting social media policies is to read the three Acting General Counsel summary reports which provide guidance on social media policies based on findings in dozens of cases brought to the NLRB. Another step is to have an attorney versed in NLRB cases review all social media policies before they are issued to employees.

Walking a Fine Line
The overriding principle of all the NLRB cases is that social media policies cannot prohibit the kinds of activities that are protected by federal labor law. An employee’s complaints about an employer on social media are only protected if they are made in relation to group activity among employees.

Employers should avoid blanket prohibitions concerning what employees can write on social media. Instead, the employer must be very specific about what the employee is not allowed to reveal, such as trade secrets and data. Employees are allowed to talk about anything to do with their employment situation. Employers cannot tell employees who they are allowed to “friend,” demand access to accounts or passwords, or make overbroad statements that can be construed to limit an employee’s rights as defined by Section 7.

A recent case involving Chipotle’s social media policies has many details in it that offer instruction as to what is protected concerted activity and what is not. In general, policies cannot be subjective, rely on disclaimers for legal protection, or infringe on Section 7 conveyed employee rights. Understanding the NLRB’s perspective, driven by the NLRA Act, can make it easier all around.

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