Contributed by Jon Hoag
On January 24, 2012, the NLRB’s Acting General Counsel, Lafe Soloman, issued his second report regarding how the Board interprets social media cases. The previous social media report issued by Mr. Soloman on August 18, 2011 sent shockwaves throughout the employment world – union and non-union employers alike. The August 18, 2011 report provided examples of the Board granting protection to employees that engaged in outrageous and disparaging conduct because other employees shared in the online complaining and commiserating. Unfortunately for employers, this second report only confirms that the NLRB intends to maintain broad protection for employees who use Facebook and other social media to complain about their job or employer.
The recent case summaries overwhelmingly show that the NLRB will find that an employee’s online posting is “protected concerted activity” (i.e. covered by the Act’s protections) as long as there is some indication that the employee’s social media posting had to do with terms and conditions of employment and at least one other coworker responded and shared in the concern. For example, the Board found that one employee’s complaint on Facebook about the employee’s dispatcher not responding and related employment concerns was just a gripe and not protected by the Act because none of his co-workers responded to the post. In a separate case, however, the Board found that an employee’s Facebook post that said her Employer had messed up (certain expletives were included in the posting) and she was done with being a good employee was protected concerted activity because some of her coworkers (who were also Facebook “friends”) responded by stating, among other things, “I’m right behind you.” The bottom line seems to be that if an employee’s Facebook gripe generates a lot of responses from coworker “friends”, the NLRB will find the conduct is protected by the Act.
Of equal concern is that the NLRB is steadfast that employers are significantly limited from applying professional conduct work rules and non-disparagement rules to an employee’s use of social media. The NLRB’s recent guidance shows that in case after case, the NLRB found employer work rules and anti-disparagement policies to be a violation of the employees’ Section 7 rights. The primary concern expressed by the NLRB is that the policies did not contain any limiting language to expressly state that the policy was not intended to apply to Section 7 rights and/or that the policy does not prevent employees from discussing wages, working conditions, or other terms and conditions of employment. As such, all employers – union and non-union – are encouraged to review policy manuals and employee handbooks to make the necessary revisions to come into compliance with the NLRB’s wild interpretation and application of law.
The following is a link to the NLRB’s second report: http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report.