Despite the relative infancy of social media it has had an enormous impact on the world. Since Facebook launched in February 2004 it now boasts 1-billion active users (more than half using Facebook on a mobile device). Twitter was launched in March 2006 and has over 500 million active users, generating 340 million daily tweets and 1.6 billion search queries per day. Pinterest, the latest craze in social media, was launched in March 2010 and is the fastest growing site in history for number of users.

Social media is impacting all aspects of life, and the workplace is no exception. Employers and employees alike are faced with new challenges as social media blurs the balance of private and public material. While the law is struggling to keep pace with the changing trends in technology, there are some guidelines that may assist practitioners in advising employment clients on social media in the workplace.

First, practitioners who represent employers should advise their clients not to be afraid of this brave new world. Employers can generally treat employee social media activity that affects their workplace just like any other type of misconduct. Employers often believe they cannot discipline or otherwise monitor employee off-duty conduct. However, when off-duty conduct comes into your business, it becomes your business. For example, any type of harassment, bullying or other improper conduct affecting productivity and working conditions should be dealt with appropriately. Employers are not required to allow such conduct during work time, on work systems, or with work equipment. Nor should employers ignore this activity if it is occurring online and affecting the workplace.

But wait! Before you advise an employer to terminate the next employee who has a negative comment about their business online, there are more guidelines to consider.

This issue has been a hot topic of discussion recently with the National Labor Relations Board (the “Board”). In recent cases, the Board has found many employers wrongfully terminated employees for making negative comments about the employer on social media websites. In most cases the Board has determined the employees’ online comments were “concerted activities” protected by the National Labor Relations Act (the “Act”). The Act was created by Congress in 1935. See 29 U.S.C. §§ 151-169. Section 7 provides employees shall have the right to form unions, collectively bargain and to engage in concerted activities for mutual aid or protection. 29 U.S.C. § 157. Section 8 provides it is an unfair labor practice to interfere with, restrain or coerce employees from exercising their Section 7 rights. See 29 U.S.C § 158.

The traditional example of a concerted activity is organizing unions. However, the definition is much broader; protecting the discussion of workplace issues among coworkers. Practitioners representing employees will point out that there is an obvious need for such protection. For example, before the Act an employee arguably could have been fired for discussing the poor working conditions of a factory with coworkers. The same employees could be fired for organizing a union. The Act protects employees from such action. It appears the Board considers negative online comments about an employer can also be considered a concerted activity, protected by the National Labor Relations Act.

On August 18, 2011, the Board’s General Counsel issued Memorandum OM 11-74, reporting on recent social media cases (“8/18/2011 Memo.”). The fact patterns of these cases are distinguishable to say the least. Plus, decisions by the Board can be appealed to the United States Courts of Appeals, so these decisions are not binding authority. However, practitioners on both sides should review the Board’s decisions, treating them as a guide for social media in the work place while the courts struggle to establish concrete guidelines.

First, comments made on social media by an employee will be protected concerted activities when the comments have a direct implication on the employee’s terms and conditions of employment and the employee acts “with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Meyers cases. Foot notes Meyers Indus.(Meyers I), 268 NLRB 493, (1984), rev’d, sub nom.  Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied, 474 U.S. 948 (1985), on remand Meyers Industries (Meyers II), 281 NLRB 882 (1986), aff’d, sub nom.  Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied, 487 U.S. 1205 (1988).

For example, in one of the reported cases in the August 18, 2011, Memorandum, the Board determined a luxury automobile dealership violated the Act when it terminated an employee car salesman for posting negative comments about the employer on Facebook. 8/18/2011 Memo. at 6-9. The employer was hosting an event for launching a new car model to the public. The salespeople became upset with the employer after they learned the employer would be serving hot dogs, cookies, and bottled water for the high class event. They feared the inexpensive food and beverages would have a negative impact on their sales and commissions. During the event one of the salespeople took photographs of the food and beverages. Later, while at home, the employee posted the pictures onto his personal Facebook page. The pictures included comments showing his criticism of the employer’s choice of food and beverages for the event. One of the photographs’ comments provided “happy to see that the Employer had gone all out for the important car launch by providing small bags of chips, inexpensive cookies, from the Warehouse Club, semi-fresh fruit, and a hot dog cart where clients could get overcooked hot dogs and stale buns.” 8/18/2011 Memo. at 7.

A print out of the employee’s Facebook page, showing the photographs and comments soon made its way to the employer. After reviewing the information the employer terminated the employee for embarrassing the dealership.

The Board found this was a concerted activity. Although only one employee posted the photographs and comments onto his Facebook page he was clearly expressing the sentiments from a group of employees. The comments were directly related to the terms and conditions of their employment because the employees worked solely for commission. 8/18/2011 Memo. at 9.

On January 24, 2012, the General Counsel issued another Memorandum (Memorandum OM 12-31) (“1/24/2012 Memo.”) reporting on additional social media cases. These cases also discussed whether or not the social media policies violated employees’ rights to engage in concerted activities. The General Counsel advised the policies should not be so broad that they prohibit activities protected by federal labor law, such as discussion of wages or working conditions among employees.

In one reported case the Board determined an employer’s rule prohibiting employees from “disparaging” the employer in any media was unlawful and violated the Act. “An employer violates Section 8(a)(1) through the maintenance of a work rule if that rule ‘would reasonably tend to chill employees in the exercise of their Section 7 rights’.” 1/24/2012 Memo. at 4 (quoting Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enforced, 203 F.3d 52 (D.C. Cir. 1999)).

The Board uses a two-step inquiry to determine if a work rule would have such an effect. First, a rule is clearly unlawful if it explicitly restricts Section 7 protected activities. If the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

1/24/2012 Memo. at 4 (internal citations omitted).

In this case the Board determined the rule prohibiting employees from “making disparaging comments about the company through any media, including online blogs, other electronic media or through the media” was unlawful because it would reasonably be construed to restrict Section 7 activity. 1/24/12 Memo. at 4.

Another reported case found an employer’s social media policy invalid when it provided that “employees should generally avoid identifying themselves as the Employer’s employees unless discussing terms and conditions of employment in an appropriate manner.” 01/24/2012 Memo. at 7. Because the policy did not define “inappropriate” and “appropriate” discussion of terms and conditions of employment the Board reasoned it could reasonably be interpreted to be prohibited protected activity, including criticism of the employer’s labor policies, treatment of employees, and terms and conditions of employment. 1/24/2012 Memo. at 8.

In another case an employer’s social media policy prohibited employees “from using social media to engage in unprofessional communication that could negatively impact the Employer’s reputation or interfere with the Employer’s mission or unprofessional/inappropriate communication regarding members of the Employer’s community.” This was invalid and unlawful, because it would reasonably be construed to chill employees in the exercise of their Section 7 rights. 1/24/2012 Memo. at 12.

Most recently, on May 30, 2012, the General Counsel issued a third Memorandum (Memorandum OM 12-59) (“5/30/2012 Memo.”). The sole focus of the report was on social media policies. 5/30/2012 Memo. at 2.

First, the Board determined a policy which instructed its employees to not “release confidential guest, team member or company information” on social media was overly broad and violated the Act. 5/30/2012 Memo. at 4. The Board found the policy “would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves—activities that are clearly protected by Section 7.” 5/30/2012 Memo. at 4.

In making the determination, the Board reiterated that generally rules that “are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful.” 5/30/2012 Memo. at 3 (citing University Med. Ctr., 335 NLRB 1318, 1320-1322 (2011); enforced denied in pertinent part, 335 F.3d 1079 (D.C. Cir. 2003)). On the other hand, “rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful.” 5/30/2012 Memo. at 3 (citingTradesmen Int’l, 338 NLRB 460, 460-462 (2002)).

In another case, the Board found a section of an employer’s social media policy which cautioned employees “when in doubt about whether the information you are considering sharing [on social media] falls into one of the prohibited categories, DO NOT POST.” The Board held “any rule that requires employees to secure permission from an employer as a precondition to engage in Section 7 activities violates the Act.” 5/30/12 Memo. at 7.

However, the Board did identify many policies which were lawful, including:

harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.

5/30/2012 Memo. at 13.

No unauthorized postings: Users may not post anything on the Internet in the name of [Employer] or in a manner that could reasonably be attributed to [Employer] without prior written authorization from the President or the President’s designated agent.

5/30/2012 Memo. at 15.

So, what can employers do?

Generally, employers can discipline an employee for simply posting gripes about the company on social media sites. However, discipline should not be imposed if the employee complaints will be considered a concerted activity-with or under the authority of other employees and in an effort to improve working conditions.

Practitioners should also advise employers to have social media policies. However, the policy should not restrict protected concerted activities. Nor should the policy be too broad and ambiguous. Instead, the policy should clarify and restrict its scope by including examples of clearly unprotected conduct.

“Like” it or not, social media is here to stay. Employment law practitioners should advise their clients on social media in the workplace so they can better deal with these issues as the line between personal online conduct and workplace conduct continues to blur.

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