Social media and Section 7 rights: employers under fire

Imagine this: An employee names and accuses a coworker of calling fellow employees unhelpful on Facebook. The post asks Facebook friends (some of whom are coworkers) to respond. A few coworkers respond aggressively and in vulgar terms. One states, “What the hell, we don’t have a life as is, what else can we do???” Another, “Tell her to come do [my] f—ing job[and see] if I don’t do enough, this is just dum.” The targeted coworker takes a copy of the comments to the company director. The director views the comments as cyber-bullying and fires the offending individuals for violating the organization’s harassment policy.

Swider

This situation occurred in Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012). What happened next may surprise you. The National Labor Relations Board ordered that the workers be reinstated with back pay. In doing so, the NLRB found the employees’ Facebook postings constituted protected concerted activity under Section 7 of the National Labor Relations Act, 29 U.S.C. § 157. To the NLRB, the employees’ comments were aimed at their job performance and were “concerted for the ‘purpose of mutual aid or protection’ as required by Section 7.’”

Zimmerly

Section 7 protects the right of employees “to self-organization, to form, join, or assist labor organizations, … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (Emphasis added.) These protections extend to employees whether they are unionized or not. The employer in Hispanics United was non-union and its employees were not engaged in any known union activity. Nonetheless, Section 8(a)(1) of the NLRA makes it an unfair labor practice for any employer to “interfere with, restrain, or coerce” employees in the exercise of their Section 7 rights. 29 U.S.C. § 158

The Hispanics United case is illustrative of the NLRB’s recent push to extend what it means to engage in concerted activity in the digital age. As Mark Pearce, chairman of the NLRB, described in a 2013 New York Times article, social media is the new water cooler. “All we’re doing is applying traditional rules to a new technology.” Yet, applying Section 7 to social media, such as Facebook and Twitter, has far-reaching implications. Employers, especially non-union employers, must recognize the shift and act affirmatively to avoid being caught in the crosshairs of an NLRB investigation.

First, employers must recognize the Internet may allow greater access to its employees’ conversations, but that may not be a good thing. A few years ago, one might expect employees to share complaints on a coffee break. These “gripe sessions” involved limited participants and were subject to differing versions of what was meant or said. Today’s employers should not be surprised if employees complain about their jobs online, in clear and permanent detail, for the whole world to see.

Employers may be understandably disturbed when complaints are shared so broadly, but they should be careful if and how they respond. The NLRB has not only extended Section 7 protections, but it has also targeted employers’ non-disparagement, social media, insubordination, electronic resources, and similar policies to assure employees have greater latitude to discuss wages and conditions of employment. For example, in Knauz Motors, Inc., 358 NLRB No. 164 (2012), a car dealer had a policy that, “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” The NLRB found that this common prohibition chilled Section 7 actions “because employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the Dealership’ as encompassing Section 7 activity.”

What is an employer to do? Will this new trend afford employees license to rip apart bosses and coworkers online without facing consequences? Unfortunately, with the current NLRB, that may be the case in all but the most egregious or “non-concerted” circumstances.

At least paying lip service to these amorphous boundaries, an advice memorandum issued by the NLRB associate general counsel in May 2013 purports to limit what online activity is deemed concerted activity under Section 7. According to the background facts, 10 individuals participated in a Facebook “group message” initiated by a former employee organizing a social event, through which the charging party verbally attacked a former coworker. The employee stated, “They [the Employer] are full of s— . . . . They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F— . . . FIRE ME . . . . Make my day . . . .” No other employees responded to her comments. The employer obliged the discontented worker and fired her.

The associate general counsel advised that the tirade did not amount to protected concerted activity because the party’s comments “merely expressed an individual gripe rather than any shared concerns about working conditions.” The only subsequent posting pertaining to the workplace did not contain a common thread pertaining to any shared concerns about working conditions.

This advice provides little comfort or guidance for employers who encounter similar tirades online. Instead, it further blurs the line employers must walk when dealing with online criticism. For example, the memo’s analysis implies if other commenters had responded, or if the topic of conversation had been “mutual workplace concerns,” such as wages or job security, the discussion may have suddenly transformed into protected activity under Section 7, thereby rendering the consequent discipline unlawful.

While the NLRA may have been intended to promote workplace peace and balance employer business needs against employee rights, these goals have been largely overlooked by the NLRB in favor of creating a breeding ground for union organizing. Such a broad application of Section 7 rights to social media leaves employers vulnerable in utilizing traditional employment policies in the face of new and expanding technology. Until Congress or the courts step in, businesses must be mindful of these new standards as they respond to an ever-growing climate of employee social media use and misuse.•

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David Swider is chair of the Bose McKinney & Evans Labor and Employment Law Group. He represents employers in labor and employment law matters, including labor and employment law litigation, employment discrimination, NLRB practice and procedure, grievance resolution and arbitration, affirmative action, collective bargaining, wage and hour, and union avoidance. Philip Zimmerly is an associate in the Labor and Employment Law Group at Bose McKinney & Evans. The opinions expressed are those of the authors.