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NLRB Acting General Counsel releases new memo on social media cases

Lafe Solomon, the Acting General Counsel for the NLRB, has issued an operations management memo detailing 14 recent cases in which the Office of the General Counsel dealt with questions arising from social media in the workplace. Half of the cases focused on social media policies, and the other half involved terminations of employees who had recently posted comments on the social media site Facebook.

The Office found five of the seven social media policies to be overbroad and found that two were lawful; one of the two was lawful only after being revised. The Office found that several of the Facebook-related charges were unlawful because they stemmed from unlawful policies, but in one case, the Office recommended upholding the discharge because the employee’s comments were not work-related.

The memo does not reveal the names of the parties out of privacy concerns. Several of the cases are noteworthy, because they represent a departure from the majority of opinions issued by the Office finding no violation of the Act in social media-related cases.

In one case, after an employee at a collections agency was moved to a different call group, the employee blasted her management on her Facebook page. A conversation ensued with several co-workers in her post, with some of the colleagues saying that they were “behind” her. The employee was then fired. The Office found that the social media policy was overbroad because it prohibited “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” That prohibition, found the Office, could be interpreted as restricting Section 7-protected statements, such as complaints of unfair treatment. Further, because the employee had initiated the conversation to complain about being moved to a less-desirable work group and because the conversation involved co-workers and the terms and conditions of employment, the Office found that the Facebook conversation was protected, concerted activity under the Act. Thus, the termination violated the Act.

In another case, the Office found that an employer unlawfully terminated an administrative assistant who posted comments on Facebook complaining about being reprimanded for her involvement in her fellow employees’ work-related problems. The employee had complained on Facebook about the termination of one of her co-workers, saying that she did not like that the employee was fired “for asking for help.” The employer told her not to give her opinion to co-workers who came to her for advice. She complained on Facebook about that order and the employer terminated her, citing the most recent posts and an earlier post in which she suggested that her manager displayed sexist attitudes. The Office found that the termination violated the Act, because the Facebook posts concerned terms and conditions of employment and because the employee’s co-workers had participated in several of the conversations. The Office also found that the employer had terminated the employee because it was concerned about where her conversations about terms and conditions of employment could lead.

In a third case, the Office found that a termination resulting from Facebook complaints about a mutual supervisor violated the Act. The employee initiated a Facebook conversation with co-workers after she was angered by the promotion of another co-worker. That conversation involved accusations of mismanagement and failures to provide raises or reviews. The employer terminated two of the employees and disciplined two others over the posts, and the Office found that the employees were engaged in protected concerted activity when they posted comments on Facebook because multiple employees were involved in a discussion that focused on terms and conditions of employment. The Office found that the terminations violated the Act, even though the employees had not made any plans for future concerted action, saying that the conversation was an “indispensable” step towards possible self-organizing.

In a fourth case, the Office found that an employer violated the Act when it terminated an employee who had participated in a co-worker’s Facebook conversation. The conversation focused on the allegedly negative attitude of a mutual supervisor, which they blamed for poor workplace morale. The employee blamed the supervisor and said she “hated the place,” and the employer terminated her. The Office found that it was “well established that employee complaints and criticism about a supervisor’s attitude and performance may be protected” and that, in the instant case, the employee’s post was part of employees’ concerted activity for mutual aid and protection, both because it was a continuation of earlier employee complaints to management about the supervisor, and because it was part of a discussion of shared concerns about terms and conditions of employment. Even though the employee’s comments focused on her own dissatisfaction, the Office found that the comment arose in the context of an ongoing discussion of terms and conditions of employment.

The Office also found that the comment had not lost the protections of the Act under the Board’s Atlantic Steel decision. Although the comment could have undermined morale, it was made during a discussion of terms and conditions of employment. The Office found that the “nature of the outburst” and “location” inquiries of Atlantic Steel combined to require consideration of the impact of the fact that the Facebook discussion could be viewed by third parties. The employer had argued that the employee had publicly disparaged the employer, thus justifying her termination, but the Office found that although the comments were critical, they were not defamatory and were not critical of the employer’s business policies or product. Thus, the Office found that the statement was protected language under the Act.

An employer’s social media policy was at the heart of another case in which the Office found that the policy, seen in the proper context, would not be seen as inhibiting protected actions. The policy allowed the employer to ask employees to confine their social networking to matters unrelated to the company, if securities regulations so required. The employer then barred employees from discussing in any form of social media “embargoed information,” such as pending reorganizations. The Office found that the rules were not unlawful, because even though the requirement could be construed to restrict employees from communicating regarding their terms and conditions of employment, in the overall context, employees reasonably would interpret the rule to address only those communications that could implicate security regulations. The Office also noted that employees do not have a protected right to disclose embargoes on corporate information and, thus, could not reasonably interpret the rule to prohibit communications about their working conditions.

Similarly, in a fifth case, an employee’s criticism of his employer following a deadly workplace shooting did not lose the Act’s protections. After the shooting, the employee had asserted that the employer’s conduct led to the shooting and frequently criticized the employee’s management style in published letters to a newspaper and in online comments on the paper’s website. Eventually, the employee posted a presentation online that he had made to his local council, charging the employer with Charging Party made a presentation multiple unfair labor practices filed, forced policy changes, unfair firings, harassment, and workplace bullying. The employer fired the employee, and the Office found that the comments were protected conduct, because they dealt with an ongoing labor dispute and because they were “the logical outgrowth” of conversations the employee had with co-workers about the terms and conditions of employment.

Moreover, the postings were not sufficiently defamatory to lose the Act’s protections. The Office noted that Allied Aviation Service protects public comments that air “highly sensitive issues.” In the instant case, the Office found that many of the online comments related to the employer’s alleged role in the shooting and that, however inflammatory, the comments also related to ongoing labor disputes. Thus, the comments were protected.

Source: CCH Editorial Staff.