As we ring in the New Year, one of the hottest topics confronting employers is the impact of social media in the workplace. With the exponential use of Twitter, Facebook, blogs and even more email communications, employers may struggle to protect their legitimate rights and reputations without violating employee rights, particularly when employee communications concern the employer’s business, product or service, customers, proprietary information, or an employee’s own terms and conditions of employment. Can a social media posting that amounts to an employee rant, calling out an employer, be grounds for employee discipline? If so, might the employer then have to legally justify that discipline?

     Central to this issue is a provision of the National Labor Relations Act (Act) that grants employees the right to engage in protected concerted activities and prohibits employers from interfering with that right. This applies not only to unionized employees and their employers, but to virtually any worker and his company.

     In administering this principle since the Act became law as part of the “New Deal” in 1935, the National Labor Relations Board (Board) and the federal courts have built a body of case law on the subject. Typically, cases arise when an employee has been warned or disciplined for some verbal or non-verbal conduct or the employer has enacted a rule or policy restricting employee conduct.

     These cases have clarified that to be covered by the Act, employee activity must first be concerted, and not just an individual action or gripe. However, concerted activity is found when an individual articulates an alleged group complaint (whether or not others may actually share his view). Sometimes concerted activity has been found in a context where the employee can be said to be “preparing” for group activity.

     Further, the Board and courts have shaped the parameters of what activity is protected. Employee complaints about pay, hours, benefits, policies, rules and the administration and application of the above are typically held to be protected, while complaints or activities that significantly disparage the employer or its managers are not protected. Thus, when the line is crossed, an employee acts at his peril and may be disciplined or discharged without taking refuge behind the Act. To a large extent, where “the line” is and whether it’s been crossed have been decided by the Board on a case by case basis, with an inclination towards protecting the employee in close cases. For example, employees calling their supervisors “a-holes” and the boss a “cheap son of a bitch” in the context of otherwise
protected concerted activities, was found by the Board not to strip away the employee’s legal protections.

     With the advent of various social media and email communication, the context and the scope of communications are fast changing. Facebook, Twitter, blogs and other communications can now broadcast the writer’s words across cyberspace to be viewed by other employees, news media and the public. The rules defining what is concerted and what is protected are now being re-examined by the Board. More than one hundred formal charges involving social media issues were filed with the Board last year. No clear pattern is emerging, and for the present the Board appears to still be deciding cases with a “case-by-case” analysis that unfortunately provides little guidance to employers for the future, as each case turns on its own particular facts.

     The charges filed to date in the social media cases are almost evenly split as to whether the Board’s General Counsel has found merit to proceed to trial. For example, the General Counsel moved a case to trial (later settled) where an employee had referred to her supervisor as a “scumbag” on Facebook, but declined to proceed where a bartender referred to an employer’s customers as “rednecks” and went on to say he hoped they choked on broken glass.

     In another case, a Chicago area car dealer was charged by the Board with unlawfully discharging a salesperson who mocked the dealer with Facebook photos of a new car that had rolled into a pond at the dealership and also criticized the dealer at meetings and on Facebook for serving cheap food at a sales event. The Board argued that the salesperson’s food complaint was concerted and protected because the cheap food would impact customer attitudes at the event, which in turn might impact all salespersons’ commissions. After trial, the administrative law judge found that the reason for discharge was the Facebook posting of the half submerged car (and not the food comments), which was neither protected nor concerted activity, and thus there was no violation of the Act. The Board is appealing the judge’s ruling.

     Aside from employee disciplinary cases, the Board has also examined various employers’ internet, email and social media policies. In some cases, the Board has found such policies to be a clear restriction of employee rights to engage in protected concerted activity. In others, it has found violations because such polices might tend to chill such activities. In the car dealer case above, while the judge sided with the employer as to the employee’s discharge, he nevertheless found that three provisions of the dealer’s employee handbook tended to restrict employee rights: 1) a statement that employees should be courteous to all (including their fellow employees) and refrain from disrespectful, profane, or other language which injures the image or reputation of the dealership; 2) a statement that employees should not give interviews concerning the dealership to any outside parties; and 3) that outside inquiries should be directed to the HR department and information should not be given by any employee or manager to an outside source. While the dealer is appealing the judge’s ruling on these points, this illustrates how seemingly straightforward and sensible business rules can now come under attack by the NLRB as explicitly or implicitly restricting employee rights to engage in protected concerted activities.

     Yet another troublesome issue in the computer age is employees’ use of the employer’s equipment, company provided internet access, and its email system to discuss or complain about some aspect of the workplace or its management or even to launch and maintain a union organizational attempt. Although an employer can lawfully maintain a policy that its system may only be used for business and thus prohibit employees from using its system for personal web surfing, non-business email, accessing personal email or social media accounts, it is doubtful that this could extend to a prohibition of employee email interaction among themselves, referencing compensation, working conditions or complaints about the workplace or managers.

     Another arena where social media issues rear their head is when employers, and especially prospective employers, look at and then take action with regard to information and photos that may be posted by employees or applicants on publically available social media sites, such as Facebook pages that the individual has not closed for public viewing. Some have suggested that viewing and taking action as to such available information may be a violation of employee privacy rights. More troublesome is where the employer may enlist a colleague to “friend” an employee so as to gather information from a social media site.

     What should employers be doing now, in the face of this fast changing electronic landscape? First, policies should be put in place or modified to protect the employer’s interests, but which do not explicitly restrict or implicitly chill employee rights to engage in concerted protected activities. Particularly, policies regarding company computer use, internet use and rules that relate to employee communication among themselves or with outsiders should be addressed. Second, when faced with responding to disparagement, criticism or sensitive information found to have been posted or shared by employees on social media or email distributions, employers should be sensitive to potential claims of protected concerted activity and, in view of the Board’s current lack of clear guidance at this time, seek counsel before entering this minefield.