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Jun 28, 2013

Social Media, Personnel Policies, and the NLRA


Category: Employment

Do you have a policy that prohibits “inappropriate discussions”?  that prohibits “disparaging remarks”?  that prohibits posting the company’s logo on line?  that states that employees cannot discuss information about other employees on line?  If so, you may have a policy that violates the National Labor Relations Act . . .  These issues are gaining more public attention as companies struggle to deal with conduct on line via company policies in the area of electronic use in the workplace, including policies that address communications via social media such as Facebook and MySpace and blogs, and the use of more business-focused media such as LinkedIn. 

The reach of the National Labor Relations Act

Many employers do not realize that the National Labor Relations Act (“NLRA”) applies to their workforce, assuming that only unionized workplaces are covered.  While much of the Act does indeed address issues in a unionized workplace, several sections of the Act apply to all workplaces, unionized or not.  A recent case involving an employee’s right to discuss workplace issues on Facebook brought to light the importance of ALL workplaces being aware of the reach of the NLRA.  In that case, an employee who criticized her employer on her Facebook page was held to be protected in doing so, even though she did so publically and offensively (including calling her supervisor a “scumbag”).  That case, brought by the National Labor Relations Board’s (“NLRB”)  Hartford, Connecticut, office, has generated intense concern about what kinds of policies employers may have that regulate employee speech and how employers may protect trade secrets and intellectual property, avoid defamation, and prevent harm to business reputations.

The NLRA protects the rights of both union and non-union employees to associate with each other and to work together (in concert).  Section 7 of the NLRA addresses the rule that has the greatest implications for workplaces of all kinds:

“Employees shall have the right to self-organization, to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities.”  29 U.S.C. § 157.

Thus, Section 7 of the NLRA protects the “concerted activities” of both union and non-union employees if those activities are for the purpose of their mutual aid and protection.  To be “concerted” in the non-unionized workforce means that the activities in question are carried out by two or more employees who are acting together or in concert with one another to address employment-related concerns.  The actions of a single employee may be “in concert” with others if the employee acts on behalf of others and the individual’s actions are approved by fellow workers.  Generally, the activity must be for the benefit of the working conditions of others, not just the employee complaining.

Section 8(a)(1) of the NLRA prohibits all employer conduct that interferes with, restrains, or coerces employees in the exercise of their rights.  Any adverse employment action taken in response to an employee’s protected concerted conduct is considered to be an unfair labor practice.  Discipline doesn’t have to interfere with or restrain employees to be illegal; liability is established if the adverse treatment tends to have a chilling effect on protected employee conduct.  An employee does not have to be involved in union activities to be protected.  Consequently, supervisors and other management representatives should be aware of the NLRA’s sections 7 and 8(a)(1) and how to identify protected concerted employee activities.

So what happened on Facebook that led to all this concern?  It started with a case filed by the Hartford office of the NLRB against an ambulance service employer (American Medical Response of Connecticut, Inc.) claiming that a terminated employee who posted negative remarks about her supervisor on her personal Facebook page was engaging in protected, concerted activities.  The company had a broad rule that prohibited employees from “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.”  It didn’t help that the employer refused to allow the employee to have union representation during an investigatory interview.

It was the NLRB’s position that the policy ban was overbroad and did not permit employees to engage in conduct protected by the NLRA.  For example, prohibiting all “disparagement” without carving out rights under the NLRA was too broad.  A blanket statement saying employees are never allowed to talk negatively about their employer or its business is risky in light of what the American Medical Response case has illustrated.  Any policy should be much more specific, and should permit employees to talk openly to other employees about their employment and working conditions.  That being said, the policy may prohibit employees from saying things that would harm the reputation of the employer, hinder its ability to do business, or expose trade secrets, proprietary information, or client/customer/patient confidential information.

Generally, the actions of a single employee are not considered protected “concerted activity” unless that employee is trying to enlist or organize other employees or urge them to take action together.  The use of social media makes it relatively easy for employees to meet that factor since employees are communicating with other employees as long as some of the employee’s contacts (or “friends”) are co-workers.  There has not been consistent guidance in the past on how to analyze social media contacts in the framework of the NLRA but the NLRB has put on its own Facebook page a list of four factors to use to determine if an employee’s comments are protected.  According to that list, an employer should look at:  1) the place of the discussion; 2) the subject matter of the discussion; 3) the nature of the employee’s outburst; and 4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.

Before disciplining an employee for their work-related speech, the communication should be analyzed in light of the NLRA.  An employee does not need to be engaged in union activities to be protected.  In the American Medical Response case, the employee was speaking critically of her supervisor and then other employees chimed in on Facebook.  Given that discipline may be reversed or a policy held to be illegal by the NLRB, it would be advisable for supervisors and managers to be educated on what NLRA sections 7 and 8 cover and require.  Separate from discipline, policies should also be evaluated to see if they are overbroad in light of NLRB’s warning in this case about policies that go too far.  There are two concerns:  1) is the discipline legal and 2) is the policy legal (or is it overbroad or does it chill employees in their exercise of the right to work together)?  There might be a problem where the discipline was fine but there was an overbroad policy, or vice versa.

On the issue of overbroad policies, an example of a common one is this:

“No tweet, blog, or social networking page or site may violate the privacy or confidentiality rights of any patient, the confidentiality of personal health information, or the rights and reasonable expectations as to privacy or confidentiality of any person or entity.”

Because this rule could inhibit employees from discussing wages, hours, and working conditions with employees and others, including union representatives, it would be considered overbroad by the NLRA.  The problem is the “confidentiality of any person or entity” portion -- employees might understand that to prohibit them from discussing working conditions, each other’s earnings, and so on.  The general advice is to target the specific conduct you want to stop as well as to include examples and put the directives in context.  For example:

“Employees are prohibited from using social media to post or display comments about coworkers, supervisors, or the employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the employer’s policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

Another approach is to put the policies as much as possible in positives of what you want employees to achieve because putting it in the form of positives is less likely to be viewed as “chilling” or stopping protected speech.  For example:

“Be respectful and professional to coworkers.”

 or

“Employees must uphold the Company’s values of __________________ Employees must avoid making defamatory statements about other employees, members/participants, clients, partners, affiliates and others, including competitors.”

Keep in mind, however, that the NLRB assumes that robust and sometimes heated and controversial discussion must and should be able to occur and will frown on provisions that might chill expression, even if that expression is critical of others.  Before terminating or disciplining an employee for speaking out or speaking negatively, it pays to pause and question whether the conduct may fall under the NLRA.  Adding a statement that makes clear that the rule does not intend to interfere with or discourage employees communicating or acting together can also help.  For example:

“This rule does not prohibit discussion of wages and working conditions among employees or with a union; to the extent it applies to information about employees, it is meant to ensure compliance with the Maine law requiring the personnel information in personnel files be kept confidential.  This rule applies to information gained by a [company] employee as a result of their position at the [company] and does not intend to limit discussion among employees about themselves and information each chooses to share.”

And keep in mind:  if your policy does not comply, it isn’t great to have to defend a claim brought with the NLRB but the penalty is that you will have to re-write your rule and then let employees know.  There are no money damages.  If you have disciplined an employee, you may have to reverse that discipline, including hiring them back.  The NLRB works with employers to come to a resolution rather than go to court or an administrative hearing.  The NLRB also has the following resources available on line:

 

This article is not legal advice but should be considered general guidance in the area of the National Labor Relations Act and social media policies.  Rebecca Webber is an employment attorney at Skelton, Taintor & Abbott in Auburn, Maine.  You can reach Rebecca Webber at 784-3200;  or rwebber@STA-law.com.