By: Paul Galligan

What rocks does an employer need to look under when faced with employee posting bad things about it on a social media website?  Rock one is more like the pebble in your shoe, the National Labor Relations Board (the “NLRB”). While the NLRB is usually known for regulating affairs between unions, employers, and union represented employees, in the last few years it has taken the lead role as protector of the hostile employee venting on Facebook, Twitter or any other social media outlet.  Most employers whose employees are not represented by a union have never dealt with the NLRB.  Discipline an employee for posting unkind or disloyal things about management or corporate culture and you will probably have to deal with the NLRB, the new champion of the blogosphere. 

Whether employees are union represented or not, the NLRB believes that when employees post comments on a social media site about their employer, they may be engaging in “protected concerted activity.”  The NLRB views the posting as “concerted” activity when it concerns working conditions and the activity is for the benefit of two or more workers, not just the employee doing the posting.  It is “protected” activity unless the employee’s post crosses a vague (some would say nebulous and still undefined) line into griping or personal rants, and becomes unprotected.    

Over the last three years, the NLRB has investigated and filed numerous complaints against employers who have disciplined employees for hostile posts on social media.  It even has a website devoted to educating employees about their rights to engage in the “protected concerted activity.”  Because the NLRB has been dealing with each case on its own merits, it is difficult to determine when the blogging employee crosses the line and the employer can take appropriate disciplinary action.  Use of threatening remarks probably crosses the line.  Criticism of the manager or insulting him and his family does not.  Certainly, according to the Board, employees are free to use profanity, like the employee in Pier Sixty, Case No. 02-CA-068612 (April 18, 2013) who referred to his supervisor in a post as a “nasty mother**ker” and cursed the supervisor’s family.  What about use of racist or sexist comments?  Perhaps the most alarming decision of the Board in this area is Fresenius USA Manufacturing, 358 NLRB No. 138 (2012), where the Board found the discharge of an employee unlawful, even though the employee wrote abusive and vulgar references to women on union leaflets and then lied about it in an investigation.

The Board also loves to scrutinize employee handbooks, and has routinely found social media policies to be “overbroad.”  So what does your handbook say about confidentiality or social media?  The NLRB’s Acting General Counsel, President Obama appointee Lafe E. Solomon, issued a Memorandum in May 2012 (OM 12-59) reporting on seven social media cases and analyzed each employer’s handbook language restricting or regulating employees activities on social media, or confidentiality provisions.  The Memorandum found only one employer’s handbook to be lawful: Walmart’s.  The Memorandum attaches the applicable policy (page 22 here) so any employer can review it and see where its own policy falls short. The vast majority of policies are found by the NLRB to be unlawful because they are over broad and/or use terms that are not defined.  With increasing frequency and an unfortunate lack of additional guidance, (and with what some might even characterize as a throwback to McCarthyism and finding “reds under the beds”), the Board has found employers liable, holding that general policies prohibiting employees from discussing confidential information of their employer would somehow tend to chill employees’ rights to discuss their wages.  One of the primary criticisms has been that employers do not define certain terms, i.e., “what is ‘confidential information’” or “what does ‘disparage’ mean” or “how might an employee’s comments negatively impact the company?”  While these questions seem relatively straightforward, the “I guess I’ll know it when I see it” response no longer gets an employer off the hook.  Rather, the NRLB is looking for specific examples of what the company considers protectable information and yet that information can’t run afoul of an employee’s Section 7 rights.  (Nope, no landmines there, folks!)  So, if you are going to take disciplinary action against a hostile employee posting about you, your company, your supervisors, or, well, anything work-related, understand where the Board stands and make sure your handbook policies are lawful.  Seyfarth’s Social Media and Privacy team members are available to help or answer questions you might have. 

Look for another Employment Law Lookout blog post later this week, which will provide some additional information and specific examples of “good” and “bad” policies that have passed NLRB muster as well as an analysis of how some of the other Federal Agencies are climbing aboard the social media bandwagon.