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Social media and Section 7 rights: employers under fire

October 9, 2013
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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-david.jpg 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.’”

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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.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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