There is no getting around it anymore: your employees are on Facebook. Recent statistics from Facebook’s website state that it has over 800 million users. It is time for all employers to know the rules surrounding employee use of social media.
For purposes of the National Labor Relations Board (NLRB), social media is described as online technology tools that include text messages, audio, video, image, podcast, and other multimedia communications.
Even the NLRB General Counsel is on the bandwagon to educate employers about those developments. An initial report was issued by the NLRB in August 2011. Then, on January 24, 2012, the NLRB General Counsel issued a second, updated report describing 14 cases submitted to the NLRB’s Division of Advice pertaining to social media policies and employee discipline issues based on social media postings by employees. These discipline cases are the focus of this blog post. It is worth noting that the NLRB is applicable only to private employers. While PERB has not weighed in on this issue, it will quite likely follow the NLRB’s lead.
The basic issue before the NLRB was whether employees, by their online postings, were engaged in protected activity, and thereby immune from disciplining by their employers based on the content of the posts. The NLRB analyzed the topic of the posts to determine whether they involved workplace issues, and it analyzed whether the posts involved discussions among employees concerning their working conditions. The NLRB explained that an employee is not engaged in protected concerted activity where posts concern “personal gripes.” The analysis is very fact-specific, so the slightest change of facts can change the outcome.
In some of the cases, the NLRB found that the employee had not engaged in protected activity, and thereby discipline was permissible. For example, in one case an employee was reprimanded and then posted an expletive on Facebook about her employer. Two of her co-workers “liked” the post. The same day, the employee posted again, complaining that her employer did not appreciate its employees, but none of her co-workers responded to this second post. The NLRB concluded that the employee had merely communicated her own frustration, was not intending to initiate collective action or a discussion about terms and conditions of employment, so her discipline was upheld.
In contrast, in one case the NLRB disapproved discipline where an employee was found to have invited group discussion about the terms and conditions of employment. The employee posted a series of items on Facebook, complaining that she had been reprimanded for getting involved in her co-workers’ issues with their employer. Although the Facebook posts did not actually generate collective discussion, the NLRB said they were protected because they were an outgrowth of the employee’s discussions with her co-workers about the terms and conditions of their employment. In a similar case, an employee criticized her manager in a Facebook post. The NLRB found the post to be protected activity because it involved the employee’s belief concerning her supervisor’s performance and was part of a broader Facebook conversation about management. The NLRB examined whether the employee’s comments were too disparaging to be protected, but found that, since they were made at home and while off-duty, they did not sufficiently disrupt the workplace so as to be unprotected.
The NLRB’s updated report provides employers some guidance as to how social media issues will be evaluated. The cases discussed in the report demonstrate the fact-specific nature of the analysis the NLRB will conduct. Like the technology itself, the case law governing social media issues is evolving. Employers are encouraged to consult with legal counsel regarding their social media policies, and regarding whether discipline may be imposed based on employee online conduct.