An employee comes home from work feeling frustrated and annoyed, as many of us often do, and logs on to Facebook. While on Facebook, she posts comments accessible by her hundreds of Facebook “friends” detailing all the reasons she dislikes her job—from incompetent management to annoying co-workers to lackluster benefits and low pay. The next day, the employee’s supervisor addresses her Facebook comments and takes disciplinary action. Was this lawful?
This is a simplified version of what currently faces many employers and employees using social media, and the best answer available is that it depends. As social media continues to gain in popularity and usage at unprecedented rates, employers are seeing an ever-increasing blurring of professional and personal lives online. It is not uncommon today to see individuals discuss work-related issues, complain about their jobs, or engage in conversations on social media sites with co-workers and non–co-workers alike that traditionally have been confined to work break rooms. But for every action there is a reaction. Understandably, employers may be concerned about their organizations’ image, potential exposures to liability, and the nature of certain conduct. Sometimes this leads to employee disciplinary action.
Terminations due to actions on social media sites, commonly referred to as “Facebook firings,” have been gaining widespread attention over the past year, including from the National Labor Relations Board (NLRB), the federal agency charged with enforcing the National Labor Relations Act (NLRA). Facebook firings may implicate an NLRA provision that protects employees’ rights to discuss matters affecting their employment in certain situations. However, the intersection between social media and labor and employment law where these cases meet is an uncharted road that the law has only recently started navigating. While posting every minutia of our lives to networks that potentially tap into millions of people online seems commonplace today, it is hard to imagine such behavior could have been predicted even in the mid-2000s, when social media began to alter more than just our digital lives.
News of the first Facebook firing case occurred only last October 2010, in American Medical Response of Connecticut, Inc.1 An NLRB regional office filed a complaint against American Medical Response (AMR), when an employee was terminated after she, along with co-workers, posted negative comments about her employer and supervisor on her Facebook page—comments that included expletives and references to her supervisor as a “psychiatric patient” and “a scumbag as usual.” Although the case ultimately settled, it was widely publicized because it signaled the NLRB’s position that a Facebook firing may be a prosecutable violation of the NLRA.
Despite the recent abundance of social media cases, only minimal guidance exists, because relatively few charges make it very far. Generally, most charges are either withdrawn or dismissed, and the majority of those with probable merit settle. An informative U.S. Chamber of Commerce report released in August 2011 found that of 129 cases before the NLRB involving social media, 117 were charges, 7 were complaints, and 5 were settlements.2 This U.S. Chamber of Commerce report and a highly publicized NLRB General Counsel Office report released the same month (detailing 14 social media cases reviewed by the agency within the last year) are the only comprehensive summaries to date on NLRB social media cases.3
Attention to Facebook firings hit its greatest peak in early September 2011, with the case Hispanics United of Buffalo, Inc.4 In this case, an employee posted a co-worker’s criticism of other employees’ job performances on her Facebook page. She and four other employees defended themselves on the page, and expressed frustration with working conditions, including workload and staffing issues. The employer, Hispanics United of Buffalo, Inc. (HUB), discharged the five employees, claiming their actions constituted harassment of the critical co-worker mentioned in the post. An NLRB Administrative Law Judge (ALJ) ruled that the Facebook firings were in violation of the NLRA, and ordered HUB to reinstate the five employees.
The Hispanics United of Buffalo, Inc. case did not change the rules of the game, but it certainly raised the stakes. Most noteworthy, it was the first case involving Facebook to result in an ALJ decision after a hearing. It also provided a wake-up call to any employers only minimally concerned about Facebook firings, given three recent Advice Memorandums released in July 2011 dismissing such charges.5 Additionally, in an odd twist of fate, because the employer, HUB, is a nonprofit, it provided a fortuitous wake-up call to the nonprofit sector. Accordingly, this case was an important reminder to employers, including nonprofits, that they should pay attention to the ongoing conversation about social media and the workplace.
What Is the NLRA and Why Should Nonprofits Care about It?
The NLRA is the federal statute protecting most private-sector labor management in the United States. It was enacted in 1935 to reduce industrial strife resulting from a lack of appropriate channels for employees’ collective efforts to improve workplace conditions. The Act therefore includes a body of provisions aimed at addressing the “inequality of bargaining power” between employees and employers.6 Section 7 of the NLRA is the provision generally implicated by Facebook firing cases, and states, in relevant part:
Employees shall have the right to self-?organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.?.?.?. 7
Surprising to many is that Section 7 protects both union and non-union employees because it protects not only the right to join a union but also to make other steps toward taking group action. This means about 108 million workers8 and as many as 6 million private employers9 are potentially subject to the NLRA. Among those excluded from the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, and supervisors.10
Nonprofit leaders are typically unaware that the NLRA applies to their organization. This is especially troubling because nonprofits may be particularly susceptible to situations that lead to Facebook firings.
First, nonprofits are the front-runners across all sectors in adopting social media use. It was recently reported that 92 percent of nonprofits, regardless of their size, use at least one commercial social network.11 Accordingly, nonprofit employers are more likely to use social media connected to their employees’ networks or have employees connected to each other’s networks.
Second, many nonprofits fail to invest in strong organizational governance structures, particularly in addressing developing areas of the law such as those related to technology. The priority may be on programs, not infrastructure, often resulting in a trial-and-error approach to developing sound policies and practices in these areas.
Third, employment-related claims are already a major source of exposure for nonprofits, accounting for 90 percent or more of all claims against boards of directors.12
Fourth, given the current economic climate, nonprofits are facing particularly difficult times, which contributes toward higher stress levels, greater job dissatisfaction, and other adverse consequences that negatively affect employees at their places of employment.
Finally, public trust is a fundamental component of any sustainable nonprofit. Thus, nonprofits are particularly vulnerable to events that might negatively affect that trust—for example, by tarnishing their goodwill or relationships with clients, donors, and other constituents.
What Is and Is Not Protected under Section 7 of the NLRA?
Three elements generally need to be established in determining whether an activity is protected under Section 7: (i) whether the activity was “concerted”; (ii) if it was, whether it is protected; and (iii) even if it is protected concerted activity, whether it lost that protection.
The phrase “concerted activities” is generally understood in terms of “individuals united in pursuit of a common goal.”13 This does not however require that two or more individuals “act in unison to protest, or protect, their working conditions.”14 The test is whether the activity is “engaged in, with, or on the authority of other employees, and not solely by and on behalf of the employee himself.”15
Concerted activity generally occurs in two forms:
- The actions of individual employees as logical outgrowth of concerns expressed by the employees collectively;16 or
- Individual employees (a) “seek to initiate or to induce or to prepare for group action”17 or (b) bring “truly group complaints” to management’s attention.18
Social media does not necessarily make activity “concerted” simply by virtue of occurring on social media platforms. However, it can certainly facilitate the possibility of concerted activity. The analysis looks primarily at the collective nature of the activity, irrespective of the merits of the content. For example, an employee’s Facebook comments to his stepsister regarding his low salary and lack of tips in response to her question about how his night went did not amount to concerted activity, because they did not grow out of a prior conversation with a co-worker about the tipping policy.19
Furthermore, comments by co-workers are not alone sufficient and must also be evaluated for context.20 For example, an employee’s Facebook post about poor performance by co-workers and management—in response to which his co-workers left comments such as “hang in there”—was found to be individual griping, not concerted activity, because the post was “solely by and on behalf of the employee himself,” and did not attempt to engage group activity.21
These cases can be compared to the “textbook example” of concerted activity, in which, in preparation for a meeting with her boss, an employee initiated a discussion on her Facebook page that in essence was an appeal to her co-workers for assistance on the issue of job performance—resulting in comments posted by co-workers.22
Protected activity refers to actions addressing terms and conditions of employment, such as pay, work hours, or supervision. The NLRB has recently made it clear that the “finding of protected activity does not change if employee statements were communicated via the Internet.”23
Given that individuals disclose a wide range of information—from the very serious to the trivial—on social media, the NLRB social media cases have been quite revealing as to the reach of “terms and conditions of employment.” For example, an automobile dealer employee’s mocking and sarcastic Facebook posts regarding his and other co-workers’ displeasure over hotdogs and bottled water being served at a BMW event were considered protected, because the employees worked entirely on commission and “were concerned about the impact the Employer’s choice of refreshments would have on sales, and therefore, their commissions.”24
Although many work-related comments will fall within “terms and conditions of employment,” not every work-related comment will be protected. For example, an employee of a residential facility for homeless people with mental health issues was not protected for her Facebook posts about the facility being “spooky.”25
Has It Lost Its Protection?
Protection under Section 7 is not absolute. In very limited cases, actions may lose their protection.26 Examples include:
- Actions so opprobrious and egregious as to render the employee “unfit for further service.”27 This four-factor test is most often applied where an employee has made public outbursts against a supervisor.28 The use of obscenities is generally not sufficient to lose protection;29 and
- Actions that are so disloyal, reckless, or maliciously untrue as to lose the NLRA’s protection.30 This test is usually applied where an employee has made allegedly disparaging comments about an employer or its product to outside or third parties.
Employers should be aware that these exceptions rarely apply. Even if an action seems inappropriate or insubordinate, the activity will not lose its protection unless it reaches certain levels of outrageousness and disparagement.31
When Does an Unfair Labor Practice Occur?
It is an unfair labor practice in violation of Section 8(a)(1) of the NLRA for an employer to interfere, restrain, or coerce employees in the exercise of their Section 7 rights.32 Most allegations of unfair labor practices in social media cases arise from unlawful discharge or disciplinary action and overbroad policies.
Employers are prohibited from terminating an employee for engaging in Section 7 activity. This does not preclude a termination based on activities not protected by Section 7.33 However, the grounds for termination are critical, especially when an employee has engaged in both protected and non-protected activity. The General Counsel generally has the initial burden of showing a prima facie case that the protected activity was a motivating factor in the termination or adverse action; if met, the burden shifts to the employer to show that it would have taken the same action, even in the absence of the protected activity.34 Thus, employers must proceed cautiously when Section 7 activity has occurred, even if that is not the grounds for termination.35
Although Facebook firings get much of the spotlight, these cases often involve overbroad policies. The underlying rationale is to prevent employers from imposing a work rule that would “reasonably tend to chill employees in the exercise of their Section 7 rights.”36 The social media cases have evaluated any policy that restricts Section 7 activity on social media, not just those labeled “social media policy.”37 Additionally, an unfair labor practice can be found based on an overbroad policy even if no disciplinary action has been taken.38
A policy is generally unlawfully overbroad in two situations:
The rule explicitly restricts protected activities; or
The employees would reasonably construe the language to prohibit Section 7 activity;39
The rule was promulgated in response to union activity; or
The rule has been applied to restrict the exercise of Section 7 rights.40
Prohibiting the discussion of wages among employees, for example, explicitly restricts protected activities.41 Other explicitly restrictive policies include prohibiting employees from providing information to outside sources or participating in interviews with outsiders (for example, reporters) regarding employees or the company.42
Looking primarily at policies that could be reasonably construed to prohibit Section 7 activity, common patterns of problematic policies have emerged, including:43
- Prohibiting disparaging, discriminatory, or defamatory comments when discussing their employer or superiors;
- Prohibiting employees from posting pictures of themselves in any media that depict the employer in any way (for example, company uniform or corporate logo) without approval from the employer;
- Prohibiting inappropriate or generally offensive language; and
- Prohibiting rude or discourteous behavior to a client or co-worker.
Such policies are often problematic because they encompass a broad spectrum of activities but contain no limiting language or context to clarify or inform employees that they do not restrict Section 7 rights. Because context is key, the same policy can have different outcomes depending on other circumstances.44 For example, a policy prohibiting “negative conversations” was unlawful when it stood alone,45 but a similar policy that prohibited “statements which are slanderous or detrimental to the company” was not unlawful, in part because it appeared on a list of prohibited conduct including “sexual or racial harassment” and “sabotage,” and therefore could not be reasonably understood to restrict Section 7 activity.46
Takeaways and Tips
Although there is still much to be desired regarding formal guidance from the NLRB, there are several takeaways and tips that can be gleaned from current information.
- Avoid overbroad language; narrow conceivably overbroad terms by providing specific examples or imposing limitations that would prevent such terms from excluding Section 7 activity.
- Avoid ambiguous or unclear language when possible; provide definitions when appropriate.
- Use a disclaimer, especially where multiple bodies of regulations overlap (for example, “none of the policies are intended, or should be interpreted, to discourage or interfere with employees’ rights under NLRA”).
- Provide a policy purpose statement or explanatory language for general context of the policy (for example, the purpose “is not to restrict the flow of useful and appropriate information but to minimize the risk to the company and its associates”).47
- Regularly review any policies that may affect social media activity with an appropriate expert (for example, an employment law or HR expert).
With so much attention on Facebook firings, it is important for employers to remember that the NLRA is only one of many bodies of regulations employers should know and encompass in their policies. For example:
- The Federal Trade Commission requires employees to disclose themselves as employees of their employer whenever providing endorsements or testimonials in employer advertisements.48
- Employees are prohibited from disclosing certain confidential or private information (for example, health care employees have obligations under HIPAA not to disclose a patient’s protected health information).
- Employees are prohibited from disclosing trade secrets or copyrighted or trademarked information (for example, employees must have prior permission to republish their employer’s copyrighted materials on their own sites).
Other laws to consider include those related to harassment, workplace bullying, conflicts of interest, anti-discrimination, and computer usage. The kaleidoscope of laws is varied and undoubtedly challenging, and employers are encouraged to seek the help of knowledgeable experts and professionals.
Many employers have an understandable fear that informing employees about Section 7 rights may result in increased unfair labor practice charges or participation in protected but generally unwelcome activities such as striking. This fear however should be weighed against the risk of ignorance not, in the end, being bliss and maybe leading to greater liability exposure and future headaches for the employer. Better education for both employers and employees about Section 7 or social media in general could prove beneficial for all parties. One can surmise that at least some employees would think twice before engaging in online behavior they knew would not be protected and might be sufficient grounds for termination.
Additionally, the NLRB has recently expressed concern about the lack of awareness regarding NLRA rights. Starting next year, the NLRB will require employers to post a copy of a notice advising employees of their NLRA rights and provide information pertaining to the enforcement of those rights.49 This new requirement may also be a sign that the NLRB will be increasingly unsympathetic to employer policies that fail to reference NLRA rights or provide a Section 7 disclaimer.
One Year Later .?.?. Are We Older and Wiser?
This article only begins to scratch the surface of Facebook firing cases before the NLRB. It is apparent now, more than ever, that things are changing, and organizations would be doing themselves a great disservice if they fell behind on these developments. We may have only seen the beginning as to how social media questions will be resolved under the NLRA. Employers are best advised to get aboard and buckle up. There may be a long and bumpy ride ahead.
1. American Medical Response of Connecticut, Inc. (Case No. 34-CA-12576).
2. U.S. Chamber of Commerce, Labor, Immigration, and Employee Benefits Division, A Survey of Social Media Issues Before the NLRB, August 5, 2011, 2–3; see also NLRB website (www.nlrb.gov), Cases and Decisions.
3. NLRB Office of the General Counsel Division of Operations-Management, Report of the Acting General Counsel Concerning Social Media Cases, memorandum OM 11-74, Aug. 18, 2011; Office of the Federal Register, National Archives and Records Administration, 76 Federal Register 54006, no. 168 (August 30, 2011). Cited hereafter as Memorandum OM 11-74 and FR, respectively.
4. Hispanics United of Buffalo, Inc. (Case No. 3-CA-27872).
5. See JT’s Porch Saloon (Case No. 13-CA-46689), Wal-Mart (Case No. 17-CA-25030), and Martin House (Case No. 34-CA-12950).
6. 29 U.S.C. §151.
7. 29 U.S.C. §157; emphasis the author’s.
8. See Bureau of Labor Statistics, “Employment Situation Summary: Table B-1: Employees on Nonfarm Payrolls by Industry Sector and Selected Industry Detail,” economic news release, last modified December 2, 2011, http://www.bls.gov/news.release/empsit.t17.htm.
9. See 76 FR 54042.
10. See 29 U.S.C. § 152(3).
11. NTEN, Common Knowledge, and Blackbaud, 3rd Annual Nonprofit Social Networking Benchmark Report (2011), 6. See also The University of Massachusetts Dartmouth, Center for Marketing Research, Social Media Usage Now Ubiquitous among US Top Charities, Ahead of All Other Sectors (March 2011). The latter publication reported that 97 percent of the largest U.S. charities surveyed have a Facebook profile, 96 percent have a Twitter presence, and 64 percent have a blog.
12. Nonprofits’ Insurance Alliance of California (NIAC) and Alliance of Nonprofits for Insurance, Risk Retention Group (ANI-RRG), Nonprofit Directors and Officers: Key Facts About Insurance and Legal Liability (2009), 2.
13. See Meyers Indus., Inc. (Meyers I), 268 NLRB 493 (1984).
14. Karl Knauz Motors, Inc. (Case No. 13-CA-46452).
15. Meyers I, 268 NLRB at 830–831.
16. NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 265 (9th Cir. 1995). It is not required that there be “express discussion of a group protest or ‘common cause.’?”
17. Owens-Corning Fiberglass Corp. v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969). “[A]ctivity of a single employee in enlisting the support of his fellow employees .?.?. is as much ‘concerted activity’ as is ordinary group activity.”
18. Meyers II, 281 NLRB 882, 887 (1986); see also Lutheran Heritage Village–Livonia, 343 NLRB 646, 647 (2004).
19. See JT’s Porch Saloon (Case No. 13-CA-46689).
20. Memorandum OM 11-74.
21. SeeWal-Mart (Case No. 17-CA-25030).
22. Memorandum OM 11-74; see Hispanics United of Buffalo, Inc. (Case No. 3-CA-27872).
23. Memorandum OM 11-74.
24. Ibid; see Karl Knauz Motors, Inc. (Case No. 13-CA-46452).
25. Martin House (Case No. 34-CA-12950).
26.Salon/Spa at Boro, Inc., 356 NLRB No. 69 (2010), citing Honda of America Mfg., Inc., 334 NLRB 751, 752 (2001), enf. 73 Fed. Appx. 810 (6th Cir. 2003). ?“[A]ctivity may become unprotected if .?.?. the employee uses sufficiently opprobrious, profane, defamatory, or malicious language. Nonetheless, the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth.”
27. Atlantic Steel Co., 245 NLRB 814 (1979).
28. The four-factor test set forth in Atlantic Steel Co., 245 NLRB 814, is: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
29. See Felix Industries, Inc., 339 NLRB 32 (2003).
30. See Jefferson Standard Broadcasting Co., 346 U.S. 464 (1953).
31. See Timekeeping Systems, Inc., 323 NLRB 244, 249 (1997). “Unpleasantries uttered in the course of otherwise protected concerted activity does not strip away the Act’s protection.”
32. 29 U.S.C. §158(a)(1).
33. See Memorandum OM 11-74.
34. Wright Line, 251 NLRB 1083 (1980), affd. 662 F.2d 899 (1st Circ. 1981), cert. denied 455 U.S. 989 (1982).
35. See Karl Knauz Motors (Case No. 13-CA-46452).
36. Lafayette Park Hotel, 326 NLRB 824, 825 (1998).
37. SeeKarl Knauz Motors (Case No. 13-CA-46452).
38. See American Medical Response of Connecticut (Case No. 34-CA-12576).
39. Double D Construction Group, 339 NLRB 303 (2003) (footnote omitted); see alsoSalon/Spa at Boro, 356 NLRB No. 69 at 73. The test is “whether the words could reasonably be construed as coercive, whether or not that is the only reasonable construction.”
40. Lutheran Heritage Village–Livonia, 343 NLRB at 647.
41. See IRIS U.S.A., Inc., 336 NLRB No. 98, citing Lafayette Park Hotel, 326 NLRB at 825, 829 (2001). Prohibiting employees from communicating about wages and conditions is unlawful in the absence of justification by significant employer interests.
42. See American Medical Response of Connecticut (Case No. 34-CA-12576).
43. See, for example, American Medical Response of Connecticut (Case No. 34-CA-12576). For instance, it prevents an employee from posting a picture of “employees carrying a picket sign depicting the Company’s name, or wearing a [T]-shirt portraying the ?[C]ompany’s logo in connection with a protest involving terms and conditions of employment.”
44. See, for example, Sears Holdings (Roebucks) (Case No. 18-CA-19801).
45. See Salon/Spa at Boro, 356 NLRB No. 69 at 83.
46. SeeSears Holdings (Roebucks) (Case No. 18-CA-19801), citing Tradesmen International, 338 NLRB 460, 462 (2002).
48. See Federal Trade Commission, Bureau of Consumer Protection, Division of Consumer and Business Education, FTC Facts for Business, The FTC’s Revised Endorsement Guides: What People Are Asking (June 2010).
49. See 76 FR 54006.
Emily Chan is an attorney with the NEO Law Group, a San Francisco–based law firm focused on representing nonprofit and tax-exempt organizations. Emily is also principal contributor to the Nonprofit Law Blog.