In Your Face[book]: Recent Revelations from the National Labor Relations Board
Both union and non-union employers may be running afoul of the National Labor Relations Act (NLRA) through the use of what were heretofore believed by many to be reasonable and appropriate workplace conduct and social media policies. A recent complaint issued by the National Labor Relations Board (NLRB) demonstrates the Board’s entry into the foray of social media legal disputes and dovetails with its often alarming efforts to excuse egregious employee misconduct.
The Social Media Complaint
By way of background, Section 7 of the NLRA protects employees’ rights to “engage in concerted activities” for their “mutual aid or protection,” i.e. to work together to improve the terms and conditions of their employment. In its recent complaint against an ambulance service, the NLRB cited Section 7 as the basis for its allegation that an employee was unlawfully terminated for posting negative remarks about her supervisor on her personal Facebook page. The employee’s negative remarks sparked supportive commentary from coworkers, which then led to further negative comments about the supervisor. The company ultimately terminated the employee for violation of its internet policies.
The NLRB’s current complaint alleges that the employee’s Facebook postings, critical as they were, constitutionally protected Section 7 activity. Further, the complaint suggests that, irrespective of their application, the Company’s blogging and internet policies were, in and of themselves, violative of the NLRA. The purportedly unlawful policies included an employee prohibition against making disparaging remarks when discussing the company or its supervisors and an employee prohibition against depicting the company in any manner over the internet without company permission. According to the complaint, such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.
The Conduct Decision
In another very recent “employee criticism” case arising out of Section 7, the NLRB charged an automobile center with impinging on an employee’s right to engage in concerted activity. In that case, the NLRB ruled in favor of an employee who was terminated after a meeting during which the employee became upset and told the company owner that he was an “F’ing mother F’er,” an “F’ing crook,” and “an a’hole,” that he was stupid, nobody liked him, and everyone talked about him behind his back. At one point, the employee stood up in the small office, pushed his chair aside, and said that, if he was fired, the company would regret it. Following this outburst, the company terminated his employment.
Overruling the determination of an administrative law judge, the NLRB stated that the employee’s outburst, “while vehement and profane, was brief and unaccompanied by insubordination, physical contact, threatening gestures, or threat of physical harm.” The Board therefore concluded that the employee’s conduct did not render him unfit for further service, did not exceed the bounds of statutory protection, and that his termination violated the NLRA. This decision provides some predictability to what the current Board may do with respect to the Facebook complaint and other social media issues. Certainly, if a face-to-face showdown such as described above does not render an employee’s conduct outside of the protections of the NLRA (or otherwise insubordinate as that term is interpreted by the NLRB), then merely critical social postings, removed in time and place from the office, are likely to be protected as well.
How Do These Cases Impact Employers Today?
Notably, employees’ right to engage in concerted activity applies in both union and non-union employer settings. The impact of the Board’s actions in these cases is the subject of much speculation and is far from clear at this time. With regard to the Facebook complaint, the matter must still be heard by an Administrative Law Judge, with subsequent appeal to the NLRB possible. The parties also have a subsequent right of appeal to the federal court system. Thus, clarity and guidance is perhaps years into the future. For the time being, employers have essentially three options. First, do nothing with respect to their currently constituted policies and procedures. Obviously, this is risky, even for those without a formal social networking policy. If a company has implemented policies intended to prevent criticism of management or the company, regardless of the context, there is danger that the newly constituted NLRB may find the policies facially invalid and any employee terminations for violation of such policies violative of the NLRA. Second, employers may choose to eliminate altogether social networking and conduct policies such as those at issue in the Facebook case, though this may ultimately prove unnecessary and could have adverse consequences in many disputes outside of the context of the National Labor Relations Act. A third, and perhaps more desirable option, given the present uncertainties, would be to amend relevant social media and conduct policies to clarify that they are not intended to, nor will they be applied so as to, interfere with employees’ rights under the NLRA. Whether the addition of such language would be sufficient to avoid drawing fire from the NLRB remains, for the time being, undecided. Employers are advised to review their current policies and consult labor counsel to determine an appropriate course of action with respect to particular policies and workplace events as they arise.
Melissa Shirley is a partner in the Baton Rouge office of the Breazeale Sachse Wilson law firm.