Social Media – Protected and Unprotected Posts – Unlawful Employer Policies
October 15, 2012
By Jessica Drangel Ochs and Hanan B. Kolko
Employees of all ages now use email and social media – like Facebook and Twitter – to communicate in cyberspace and post information. Employees use their online accounts, either from work, home, or a smart phone, to speak (and complain) with friends and colleagues about work; they also post information to websites, including union websites. Online activity is readily discovered by employers, and employees have faced an increasing amount of discipline over online postings.
Also, employers have responded to the exponential growth in online communications by imposing rules that restrict employees’ ability to “publish” information about their workplaces in cyberspace. These rules implicate federal and state laws that govern electronic communications and privacy, as well as the National Labor Relations Act (NLRA). This article focuses on the NLRA and discusses the rights and risks employees face when they communicate online about their work.
Employee Rights and Protections
Under Section 7 of the NLRA, employees have the right to engage in union activity and concerted activity for the purpose of collective bargaining or other mutual aid or protection. This means that employees are protected by federal law if they communicate with one another or with a union about their working conditions. This is true whether or not their workplace is unionized.
Therefore, it is a violation of the NLRA for an employer to discipline employees for engaging in union activity or protected concerted activity. Under the law, employees using social media to engage in union activity, or protected concerted activity, are protected by the NLRA, just as they would be if chatting with coworkers at the water cooler. See Bay Sys Technologies, LLC, 357 NLRB No. 28 (2011) (finding unlawful discipline issued to employees who complained to one another on Facebook about paychecks).
It is important to note that some online communications and postings to social media sites that concern work are protected by the NLRA, but others are not. If the postings involve union activity, they are protected. If no union is involved, the Board uses longstanding principles established in Meyers Industries, 281 NLRB 882 (1986), to determine whether online communications are protected. This is a two part test: 1) Does the communication concern wages, hours, benefits, supervisors or other working conditions? If not, then the protection afforded by the NLRA does not apply; 2) Is the post concerted or merely individual griping? If the posting is a complaint on behalf of more than one employee, then it is concerted, and thus protected under the NLRA.
More difficult to analyze is the sole actor’s posting. If the communication seeks to initiate, induce or prepare for group action, it is concerted. For example, a post surveying coworkers about what they thought of a supervisor’s critique of their work in anticipation of a discussion with management would be protected. Also, if the posting references conversations with coworkers that occurred before the postings were made, so that the posting is a logical outgrowth of those conversations, it is concerted. The Board will also look to see if any coworkers of an employee’s post are Facebook friends or Twitter (or other blog) followers. If coworkers respond to a post, that helps push a post into the protected category. However, the Board may find a post unprotected where no coworker replies to the post; even in the face of employee responses to a post, the Board may characterize the content as an individual gripe if the online discussion does not directly address specific terms and conditions of employment.
Even if posts are both about working conditions and group (concerted) activity, a post can lose its protection if the communication is outrageously profane or disloyal. In evaluating communications, the Board balances the right of employees to communicate about working conditions against possible disruption of shop floor discipline and / or harm to the company’s business. As posts often can be viewed by third parties outside the workplace, this factor is seized upon by employers to argue a post is unprotected because it may adversely affect the public’s view of the business. Thus, while mere profanity toward a coworker may be protected, violent or sexual language about supervisors or coworkers will not be. A communication that can be viewed by a third party and disparages the company product may not be protected. This is more likely to be true if the post is not also about working conditions. For example, “The computers we make are junk,” or “A competitor’s store is way better than our store,” posted by a worker of those establishments on a public site, could be unprotected.
The bottom line is that workers can post about their hours being too long or hating their supervisor because they harass them. However, to assure NLRA protection, they must keep all communications that mention the company tied to working conditions (pay, hours, safety, union).
Finally, using the company’s computer systems or hardware to communicate via social media creates additional risks for employees because of NLRB holdings establishing that employers have the right to control their property. In Register Guard, 351 NLRB 1110 (2007), the Board ruled that an employer has a basic property right in its email system and that employees do not have a statutory right to use the company’s email system for union related purposes. That case also held that an employer can lawfully prohibit the use of its email system for all non-job related solicitations, including union activity. While the NLRB may revisit that decision, it is likely that the NLRB will continue to allow employers to control their hardware and computer systems in a nondiscriminatory fashion. Therefore, for maximum legal protection, employees should communicate about workplace issues or their union activity using their own electronic devices.
Advice for Employees Posting in Cyberspace
• Assume anything you post on a social media site will be read by the boss;
• You have the right to communicate with one another about working conditions using social media, but exercise caution;
• Posts that include comments about terms and conditions of employment are the most likely to be found protected;
• Seek feedback from coworkers on topic of post to assure group activity.
• Avoid language that is disloyal, disparaging or obscene;
• Do not use company property or systems to post unless it is clear you have a right to do so.
What to Watch Out for in Employer Social Media Policies
In response to the explosion of on line postings, employers have imposed policies that restrict employees communicating online about their jobs and the company. Social media policies typically prohibit dissemination of confidential information and proprietary information, and disparagement of the company, and provide for discipline for violations of the policy. Many of these policies are unlawful because they also restrict an employee’s right to communicate with coworkers and third parties (unions, the media) about working conditions. Under Board law, an employer policy is unlawful if it explicitly restricts union or protected concerted activity. But even if a rule does not explicitly restrict such activity, it is unlawful if employees would reasonably construe the language to chill union or protected concerted activity. Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004).
These policies often run afoul of the law because they are overbroad and an employee could reasonably interpret the policies as prohibiting communications about working conditions. For example, rules that prohibit discussion of confidential information may prevent employees from sharing information about working conditions. If the policy defines confidential information as including personnel records, this may be unlawful because employees know that such records typically include wage and disciplinary information – topics that are protected by Section 7 of the NLRA.
The Board recently issued a decision about a social media rule in Costco Wholesale Crop., 358 NLRB No. 106 (2012), in which it affirmed its prohibition against overbroad non-disparagement rules. The Board found unlawful a rule that prohibited employees from electronically posting statements that “damage the Company, defame any individual or damage any person’s reputation.” Applying longstanding NLRB principles, the Board reasoned that such a rule “clearly encompasses concerted communications protesting the [employer’s] treatment of its employees.” Moreover, the Board noted the absence of any language limiting the rule’s breadth or suggesting that employees’ work related communications would be excluded from its coverage.
In addition to overbroad confidentiality and disparagement policies, employers may have other policies that unlawfully restrict social media communications. For example, policies that prohibit employees from posting pictures of themselves in company uniforms or that prohibit postings that contain company logos or photographs may be unlawful. Also, policies that prohibit employees from engaging in “unprofessional” or “inappropriate” communications may be unlawful as such restrictions are vague and overbroad.
In sum, social media polices are lawful if they are narrowly tailored to achieve goals of preventing communication of proprietary information about the company; preventing disparagement of the company’s products, competitors, employees or services; or prohibiting posting of vulgar, obscene, threatening or intimidating comments, or violation of workplace antiharassment and discrimination policies.
Individuals reviewing workplace rules or unions drafting policies for negotiations should consider whether language that clarifies employee rights and limits the breadth of the rules is present. Limiting language that makes clear that employees have the right to communicate about their workplace can render policies in this area lawful. For example:
There is no prohibition on using social media for speech protected by the National Labor Relations Act, such as openly discussing wages, hours, working conditions and grievances, even when doing so may involve criticism of the company.
Steps to Take to Protect Rights
If you are in a unionized workplace, your employer likely must bargain with the union over social media and communication policies. Employers often post these rules without seeking to negotiate. Unions should demand bargaining over these policies. If you are subject to, or have been disciplined over, rules that you believe may unlawfully restrict your communications, you should contact your union or the NLRB (www.nlrb.gov).
Jessica Drangel Ochs is Of Counsel to Meyer, Suozzi, English & Klein, P.C. and is part of the firm’s Labor practice group. Ms. Ochs represents unions and individuals in the courts, arbitrations, and administrative hearings, appearing regularly before the National Labor Relations Board. She also advises unions on all aspects of labor law, including organizing campaigns.
Hanan B. Kolko is a Member of Meyer, Suozzi, English & Klein, P.C. and a part of the firm’s Labor, Employment and Employee Benefits practice groups. In addition to representing union clients before Federal and State courts, the NLRB and the New York State Public Employment Relations Board, Mr. Kolko has skillfully handled hundreds of arbitration cases. Mr. Kolko advises unions and their officers on a wide variety of issues, including Landrum Griffin compliance and negotiating strategy.