During the “Delegate Duel” at the Detroit ICSOM Conference, delegates were challenged to address a number of hot topics in the legal arena. One of these topics involved the use of social media. In the future I hope to address other issues that may affect your day-to-day handling of grievances, negotiations, and enforcement of the collective bargaining agreement.

Not surprisingly, the explosion of social media has had an impact on the workplace. Social media is transforming the way employees communicate and air workplace grievances. Employees increasingly communicate about wages, hours, and terms and conditions of employment on the Internet. Equally unsurprising is the fact that employers have often tried to curb employees’ Internet activities.

Depending on the content of the communication and the intended recipients, an employee’s use of social media as a means of communicating information regarding wages, hours, and other conditions of employment may constitute protected concerted activity. When an employer becomes aware of information or the content of specific communications involving a current employee and takes action as a result, actual and potential legal implications arise. The NLRB is beginning to address these issues and has decided, or the General Counsel has issued advice, in at least 14 unfair labor practice cases involving social media within the past year. From these cases it is now clear that employees’ social media communications can be, but not always are, protected concerted activity. Although the medium is different, the rules of the game remain essentially the same with respect to the types of activities that are protected under the National Labor Relations Act (NLRA).

Our top five takeaways from these cases are listed here and explained in more detail below:

1. Social media activity must be “concerted” to be protected;

Airing of individual “gripes” that don’t rise to the level of grievances under the collective bargaining agreement may not be protected;

2. Internet postings may be protected even if they contain offensive language or aren’t quite accurate;
3. An employer cannot have a blanket policy that completely prohibits employees from engaging in what the employer unilaterally deems to be an inappropriate discussion on the Internet or from taking and posting pictures or using company logos on the Internet; and
4. An employer can have a policy that all official inquiries need to go through the employer’s media contacts.

Rule #1: Only concerted activity is protected.

To qualify as protected concerted activity, the activity must be engaged in with or on the authority of other employees, and not solely by or on behalf of the employee himself. Activity also may be protected in circumstances where individual employees seek to initiate or induce or prepare for group action and where individual employees bring truly group complaints to management’s attention.

For example, in a case involving an ambulance service, an employee asked for and was denied union representation after being told to prepare an incident report regarding a customer complaint about the employee’s work. The employee posted about the incident on her Facebook page and co-workers commented on the posting, which led to further negative comments. The employee was suspended and later fired because the postings violated the company’s Internet policies which prohibited employees from making disparaging remarks when discussing the company or supervisors and from depicting the company in any media without the company’s permission. The NLRB concluded that the employer violated the NLRA when it fired the employee, finding that the employee engaged in protected activity by discussing supervisory actions with co-workers on her Facebook post and by exercising her Weingarten rights and protesting the denial of her Weingarten rights to union representation. The NLRB also concluded that the employer’s policy was overly broad because it prohibited an employee from engaging in protected activity.

In another case, the NLRB found that employees were using social media to engage in protected activity where an employee working at a sports bar and restaurant complained on her Facebook wall that she had tax liability at the end of the year and that the owners were incorrectly withholding taxes. She posted that the owners “could not even do tax paperwork correctly.” Other employees and even customers commented and “liked” her Facebook post and the employee was subsequently fired. The NLRB found that the employee was engaging in protected concerted activity by complaining about a term and condition of employment—the employer’s administration of tax withholdings.

In contrast, where a reporter was tweeting criticisms related to his public safety beat and did not make any comments about the newspaper that employed him, the NLRB held that the employer lawfully fired an employee for making “unprofessional and inappropriate” tweets to a work related Twitter account. The employee criticized a local television station and posted tweets that were critical of his paper’s copy editors but did not discuss any of these concerns with his co-workers. In another case, an employee at a facility for homeless people made a post on Facebook that described and made fun of her clients at the facility. There was no evidence that any co-workers saw or commented on the Facebook posting, nor was there any evidence that she was seeking to induce or prepare for group action. A former client complained to the facility and the NLRB determined that the employee was lawfully fired.

Rule #2: Airing of individual gripes with a supervisor or a co-worker may not be protected concerted activity.

Concerted activity is protected; however, putting individual gripes about a co-worker or supervisor on the Internet may not be. The NLRB has held that if an employee’s Facebook postings are an expression of an individual gripe, and not concerted activity, they are not protected. For example, a retail store disciplined an employee for posting comments that were critical of a local store manager. The employee complained that he had been harassed for mispricing or misplacing merchandise. Although co-workers made supportive comments, the NLRB held these kinds of posts were not protected concerted activity because the posts contained no language suggesting that the employee sought to initiate or induce co-workers to engage in group action but rather expressed only frustration regarding the employee’s individual dispute with his assistant manager over mispriced or misplaced items.

Rule #3: Internet postings can be protected even if they use offensive language or aren’t completely accurate.

As everyone knows, language on the Internet isn’t quite the same as language most employees would normally use when speaking to an employer. In many of these cases employees have used offensive language to discuss their supervisors and employers. As long as the postings are not disruptive to work, they are generally protected even if they contain swearing or sarcastic language. In order to lose protection under the NLRA, the posts must be characterized as “opprobrious.” None of the social media cases or advisory opinions in the last year has considered the employee’s conduct and language at issue to be “opprobrious,” although colorful language and insults have been used.

In addition, the NLRB generally found in social media cases that alleged defamatory conduct did not lose the protection of the Act’s right to engage in protected concerted activity. The NLRB has held that an alleged defamatory statement will not lose its protected status unless the statement is “not only false, but maliciously false.” For example, in the case discussed above where the sports bar and restaurant employee complained that her employer could not even do tax paperwork correctly, the NLRB said it was not even convinced the statements were false, much less maliciously false, and concluded that they were protected.

Rule #4: An employer cannot have a blanket policy that chills protected rights.

Several cases involved a blanket Internet policy prohibiting action like posting about the employer’s business, posting photographs, or using a company’s logos. The NLRB has held that the employer’s policies in these cases were overly broad and violated the National Labor Relations Act. In these social media cases, the NLRB has held that an employer violates the NLRA when it maintains a work rule that would “reasonably tend to chill employees” in exercising their rights to engage in protected concerted activity. The NLRB first considers whether the employer’s Internet policy explicitly restricts protected concerted activities, in which case it would violate the National Labor Relations Act. Even if a policy does not explicitly limit such activities, an employer’s social media/Internet policy may still be unlawful if (1) employees would reasonably construe the language of the policy to limit protected concerted activities; (2) the policy was promulgated in response to union activity, or (3) the policy has been applied to restrict the exercise of protected concerted activities.

The NLRB has found that policies that prohibit the use of logos or photographs would restrain an employee’s exercise of rights to engage in protected activity. For example, the NLRB has stated that employees could not be prohibited from posting pictures of picketing employees in front of the employer’s premises or other protests involving terms or conditions of employment because this would chill employees’ free exercise of their rights to engage in protected concerted activity.

Rule #5: An employer can have a policy that all official inquiries need to go through the employer’s media contacts as long as the employer doesn’t prohibit protected concerted activity.

The NLRB has held that an employer’s policy that required all official external communications to go through the public affairs office, that prohibited employees from using cameras in the store or parking lot without permission, and that required employees to respond to media questions by stating that they were not authorized to speak for the employer did not violate the NLRA. The NLRB said the policy alone could not be read as a blanket prohibition against engaging in protected concerted activity. Although the employees were required to respond to media inquiries in a certain way, the required response did not convey the impression that employees could not speak out regarding the terms and conditions of their employment. Also, the NLRB read the prohibition against using cameras in the workplace as only dealing with how to respond to news inquiries and found that it did not appear to apply to personal cameras. It therefore concluded that the media policy would not chill employees’ protected concerted conduct.

Employers have a duty to bargain about media policies impacting the rights and responsibilities of employees. If the employer has a unilaterally promulgated policy, this may be a contract violation or an unfair labor practice. In the absence of a policy, a good rule of thumb would be to exercise common sense before pushing the “Send” button. When in doubt, seek advice before posting or tweeting.