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<!–:en–>NLRB ISSUES SOCIAL MEDIA UPDATE<!–:–>

January 29, 2012

The National Labor Relations Board’s (NLRB) Acting General Counsel Lafe E. Solomon issued a new report on January 24, 2012 on unfair labor practice cases involving employee use of social media and online communications, reviewing 14 cases recently considered by his office and describing the conclusions he reached about the rights of employees and the obligations of employers under federal labor law.

According to Memorandum OM 12-31, which updated an August 2011 report, the acting general counsel continues to take the view that employees using social media to engage in protected concerted complaints about their employment are protected by the National Labor Relations Act (NLRA), while employees who merely air individual gripes lack statutory protection.

Solomon’s report also provides guidance for employers drafting policies on employees’ social media use. The acting general counsel considered seven cases on policy language, and found that five employers had adopted overbroad policies that violated employee rights, while one employer had a lawful provision, and another started out with an illegal policy, but managed to amend it to conform to the NLRA.

Solomon discussed several cases in which NLRB’s Division of Advice was required to determine whether employees who engaged in online complaints were protected by Section 7 of the NLRA. Names of the parties were removed from the case summaries he provided.

In one case, an employee working for a chain of home improvement stores, upset that a supervisor reprimanded her in front of a company manager, updated her Facebook status with a comment that included an expletive and the name of the employer.

Several individuals, including one co-worker, indicated on the Facebook page that they “like” the comment, but when the employee later added an online comment that the company did not appreciate its employees, her co-workers did not respond to the posting. The employee was fired due to her Facebook comments.

NLRB held in Meyers Industries, 268 N.L.R.B. 493, 115 LRRM 1025 (1984), that an employee acts in concerted activity if the worker acts “with or on the authority of other employees and not solely by and on behalf of the employee himself.”

Solomon concluded that the home improvement company employee was not protected by the NLRA, observing that she “had no particular audience in mind when she made that post, the post contained no language suggesting that she sought to initiate or induce coworkers to engage in group action, and the post did not grow out of a prior discussion about terms and conditions of employment with her coworkers.”

On the other hand, an employee working for a collections agency was engaged in concerted activity when she posted a Facebook status update with an expletive complaining that a supervisor had reassigned her without good cause. The employee’s posting was followed by an online dialogue that included expressions of support by other employees, who added their own criticism of the employer and even discussed a possible class action against the company.

In the collections agency case, Solomon said, “the Charging Party’s initial Facebook statement, and the discussion it generated, clearly involved complaints about working conditions and the Employer’s treatment of its employees and clearly fell within the Board’s definition of concerted activity, which encompasses employee initiation of group action through the discussion of complaints with fellow employees.”

NLRB held in Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646, 176 LRRM 1044 (2004), that an employer violates Section 8(a)(1) of the NLRA if it maintains a work rule that employees would reasonably understand to prohibit NLRA-protected activity. Solomon applied the principle in seven recent cases, paying close attention to the
language of employer policies on social media use or public comments by workers.

In the case of the home improvement store that lawfully fired an employee, Solomon found that the store’s social media policy was unlawful. The policy instructed employees they should generally avoid disclosing their employment on social media unless they are discussing employment terms and conditions in an “appropriate” manner.

Solomon found that the rule implicitly prohibited “inappropriate” discussion of employment conditions and that employees would reasonably interpret it as forbidding conduct protected by Section 7 of the NLRA.

The same policy contained what Solomon described as a “savings clause”—a statement assuring employees that the policy would not be interpreted or applied in a manner that would interfere with their NLRA rights, which were briefly described.

But the acting general counsel said the savings clause did not justify an otherwise unlawful policy. An employee could not reasonably be expected to know that the clause would protect conduct the policy otherwise indicated would be “inappropriate,” he concluded.

In another case cited in the report, a company that operates clinical testing laboratories had a broadly worded prohibition on disclosure of confidential, sensitive, or nonpublic information that Solomon found unlawful. The policy failed to give employees a context or examples that would clarify their right to engage in Section 7 activity, and would require employees to obtain company approval before engaging in protected acts, he said.

Solomon also found that the testing company unlawfully maintained a policy prohibiting use of the company’s name or service marks outside the regular course of business unless management approval was obtained first.

The acting general counsel said restricting the use of a company name and logo in “protected concerted activity, such as in electronic or paper leaflets, cartoons, or picket signs” would interfere with employee rights under the act.

“Although an employer has a proprietary interest in its service marks and in a trademarked or copyrighted name, we found that employee use in connection with Section 7 activity would not infringe on that interest,” the acting general counsel concluded.

He found that the employer’s legitimate interest in avoiding public confusion about its name or identify and the public’s interest in not being misled “are not remotely implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the Employer in the course of engaging in Section 7 activity.”  01.29.2012