Social media platforms have greatly transformed personal interactions in the work environment. But the trend toward daily use of social networks, at work and elsewhere, has generated legal controversy as to what is protected worker activity and what is grounds for termination.
In 2010, the National Labor Relations Board (NLRB) filed a complaint against American Medical Response of Connecticut (AMR) for firing an employee who -- after being refused union representation following an incident at work -- posted a rant on her Facebook page insulting her supervisor. The NLRB alleged that the termination of the employee constituted an unfair labor practice, violating § 8(a)(1) and (3) of the National Labor Relations Act, on the theory that such action discourages membership in a labor organization. (See Complaint (No. 34-CA-12576), www.laborrelationstoday.com .)
Unfortunately, the AMR case provided relatively little clarity as to when the Board will enforce limits on employee social media conduct, as the parties entered into a settlement agreement, without a final opinion. Pursuant to the settlement, AMR revised its communication policies. The settlement, however, created no binding precedent. (See "Settlement Reached in Case Involving Discharge for Facebook Comments .")
In the Spring of 2011, the NLRB issued a series of additional complaints against employers based on social media policies, on the theory that such policies violate employee rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. In January 2012, the NLRB Acting General Counsel (AGC) released a report summarizing those recent social media cases.
The AGC's report underscored two main points concerning the NLRB counsel's views:
- That employer policies should not be so broad as to prohibit activity protected by federal labor law, "such as the discussion of wages or working conditions among employees"; and
- That an employee's comments on social media would not be protected when they involve "gripes not made in relation to group activity among employees." The 2012 report too provides only limited guidance for employers. The report emphasized that "these cases are extremely fact specific."
In May 2012, the NLRB provided some clarification when it issued a report in which the AGC detailed instances of employer social media policies it labeled "overbroad," and instances of when employer social media policies are valid and legal. According to the AGC, the key distinction in these social media cases is whether the employer policies "would reasonably be construed to chill the exercise of Section 7 rights in violation of the [National Labor Relations] Act."
The AGC provided advice for employers for constructing social media policies: According to the AGC, employers may enforce social media policies that contain clauses such as: warnings ("You are solely responsible for what you post online" or "Before creating online content, consider some of the risks and rewards that are involved"), and prohibitions of "plainly egregious conduct."
[Disclosure: The author is a partner in the New York City offices of Jones Day. Samuel Goldstein, a summer associate at Jones Day, assisted in the preparation of this article. The views expressed are solely those of the author, and should not be attributed to the author's firm or its clients.]
— Steven C. Bennett is a partner in the New York City offices of international law firm Jones Day.