Overreactive Guidance for Social Networking Du Jour — NLRB Edition

[Post by Venkat Balasubramani]

NLRB Memo – Memorandum OM 11-74 (Aug. 18, 2011) (“Report of the Acting General Counsel Concerning Social Media Cases”)

There has been a steady drumbeat from employment lawyers warning about the increasingly watchful eye of the National Labor Relations Board over so-called “social media terminations”–where a company fires an employee for making a statement about the company on Facebook or Twitter. The NLRB recently issued a report regarding the cases it was involved in. I took a look at the report and was surprised at the types of things the NLRB says that private employers cannot fire employees for. (The report is a quasi-advocacy document. Courts have some room to reject the NLRB’s position, but it will obviously be accorded some deference as the agency in charge. Correction: it does not reflect the views of the NLRB, but those of its General Counsel, who is responsible for prosecuting cases before the NLRB.)

Protected activity: Here are a few statements that the NLRB said was “protected activity” and therefore could not justify a firing:

- salespeople who complained about the quality of snacks furnished by a car dealership-employer at a client event;

- employees who complained about the employer’s tax withholding practices (and the fact that they owed money);

- social services non-profit’s employee who posted that her coworkers did not do enough to help clients;

- hospital employee who complained about a co-worker’s absences;

- employee who posted a negative remark about a supervisor in response to the supervisor’s request for an incident report.

Unprotected activity: Here are a few that the NLRB said were not protected activity:

- posting that a Wal-Mart assistant manager was being a “super mega puta”;

- Tweets by a journalist that criticized other media outlets and some with sexual content (after being warned);

- bartender who posted about an employer’s tipping policy (in response to a non-employee question);

- employee who posted on her Senator’s wall about government contracts her employer had secured;

- employee who posted about mentally disabled clients.

Overly broad social media policies: The NLRB also offered guidance on when employer social media policies were overly broad:

- prohibition on communications that constitute “embarrassment, harassment or defamation” of the employers and staff members and a similar prohibition “against statements that lack truthfulness or that might damage the reputation or goodwill of the [employer], its staff, or employees”;

- prohibition on employee use of microblogging tools on their own time “to talk about company business on their personal accounts; from posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy . . . [and] from posting any pictures or comments involving the company or its employees that could be construed as inappropriate”;

- prohibition on employees posting pictures of themselves “which depict the company in any way, including a company inform, corporate logo . . . .”;

- prohibition on “disparaging” remarks when discussing the employer or supervisors, coworkers and/or competitors.

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The NLRB’s 24 page document purports to provide guidance and promises to be “of assistance to practitioners and human resource professionals,” but it left me scratching my head. The report should come with a strong disclaimer that anyone who reads it may find themselves more confused about social media terminations.

I get that employees have a right to organize, and employers are prohibited from interfering with the activities of employees which fall into this category, but the report reflects a hyper-nuanced view of what constitutes a complaint about the conditions of someone’s employment and what constitutes concerted activity. In the case involving the salesman that was fired for complaining about the quality of snacks the dealership furnished for a customer event, the NLRB reasoned that since the salespeople work on a commission basis and since customers may be influenced to buy cars depending on the quality of snacks that are provided, complaining about the quality of snacks can actually be considered a complaint about a condition of employment. Say what??

In the case where employees complained about their employer’s tax withholding practices (a legitimate gripe, obviously), the NLRB says that the employees engaged in a conversation that “embodied ‘truly group complaints’ but also contemplated future group activity”:

a former employee posted on her Facebook page a statement, including a short-hand expletive, that expressed dissatisfaction with the fact that she now owed money. She also asserted that the Employer’s owners could not even do paperwork correctly. One employee . . . responded to this posting by clicking “Like.”

Wow! Someone clicked on a “like” button on a stray Facebook comment. Such an amazing, hearfelt show of solidarity! Interestingly, enough, the bulk of the activity that the NLRB is concerned about seems to take place on Facebook, which we all know is a veritable bastion of serious discussions about life issues. Kashmir Hill makes a similar point about the extreme nuance underlying the NLRB’s positions in her post (“When You Can and Can’t Fire Employees for Social Media Misbehavior“):

If you decided above to fire the BMW worker [the car dealership case], wrong answer. In that case, the employee was “vocalizing the sentiments of his coworkers” and expressing concerns that had already been raised by sales people at a staff meeting. That’s concerted activity. If you decided to fire the Wal-Mart employee [the "super mega puta" case], right answer. Even though other co-workers chimed in with words of emotional support, the employee was expressing his or her own gripe. It was not concerted.

The NLRB comments on the permissible bounds of social media policies was equally confusing. The NLRB takes issue with allegedly vague language in policies which prohibit “inappropriate,” “disparaging,” “embarrassing” comments about a company or its brand, because of the chilling effect it would have on employee communications. One would think that these are all legitimate concerns companies may have about employee communications that would affect how the companies are perceived in the public. But the NLRB’s view seems to be that prohibiting your employees from airing your dirty laundry in public may run afoul of labor laws. The NLRB goes so far as to say that an employee policy that prohibits the use of “the company name, address, or other information on their personal profiles” is “unlawful.” On the other hand, the NLRB alludes to the fact that a simple limitation in a policy that advises employees that a policy should not be construed to “apply to Section 7 activity” would be sufficient to save a policy. This would not seem to result in much clarity for either the employer or the employee.

There could be a couple of possible employer reactions to the NLRB’s stance.

Employers may react strongly and start limiting social media access from the workplace or from workplace equipment or networks for personal use. We all know that the bulk of social networking activity occurs from the workplace, and employers may well conclude that if they are going to be held to strict standards in their employment decisions, they may as well make it hard for employees to participate at all. (I don’t know the answer to whether the NLRB would crack down on a blanket prohibition on the basis it somehow restricts concerted activity. This would be ironic.) Concerned employers may also decrease their social media participation. In some of the cases, the discussions between employees also involved customers or clients. It puts the employer in a pretty awkward position to have to tolerate employee comments about workplace issues if they are taking place in front of customers or clients. The issue of customer or client perception did not seem like it was of any significant concern to the NLRB.

In reading through the memo, I had the nagging thought that someone at the NLRB is taking Facebook way too seriously. As with most social media regulatory efforts by the government my reaction is: “don’t they have something better to do with their time?”

This concludes this week’s edition of overreactive guidance to social networking. Next up, we’ll discuss the Financial Industry Regulatory Authority Regulatory Notice 11-39, which gives the NLRB memo a run for its money.

[I hope everyone is having a safe and relaxing Labor Day.]

Other coverage:

When You Can and Can’t Fire Employees For Social Media Misbehavior (Kash Hill)