NLRB’s Continued Focus on Social Media, Use of Reinstatement Remedies to Protect Concerted Activity, and New Guidance for Employers Drafting Social Media Policies
As a follow-up to one of my prior blog posts — Around the Virtual Water Cooler: Assessing, Implementing and Enforcing Company Social Media Policies in Light of Recent National Labor Relations Board (“NLRB”) Trends, June 2011 — the NLRB has once again confirmed that it has made social media an enforcement priority, and that its primary target remained employers who terminate employees for engaging in “concerted activity” that is protected by the National Labor Relations Act (“NLRA”).
- A. Continued Focus on Protecting Concerted Activity Via Social Media and Recent Use of Reinstatement as a Remedy
Recently, in Design Technology Group, LLC et al., Case 20-CA-35511 (Apr. 27, 2012), an Administrative Law Judge found that a San Francisco based non-union clothing retailer, Bettie Page, engaged in unfair labor practices when it discharged three employees who had engaged in protected concerted activity — discussing poor management of their workplace and concerns about working late in an unsafe neighborhood — via Facebook, just six days after the relevant social media posts. What is perhaps most noteworthy about this decision is that, not only was Bettie Page ordered to pay the discharged employees back wages, it was also ordered to reinstate the employees. This should serve as a caution to employers who terminate employees for engaging in protected concerted activity via social media. It is now a reality that they may be forced to re-hire the discharged employees, despite severely strained relationships — which probably weren’t helped by the initial firing and legal action — and regardless of whether the employer has an appropriate position available.
- B. New Guidance for Employers Implementing Social Media Policies
Continued focus on unfair labor practices in response to social media communications is no surprise. What is interesting, however, is that related decisions are beginning to give employers some real guidance on what they should and should not include in their social media policies. As addressed in my last blog entry on this topic, the NLRB’s focus on social media communications was, in part, prompted by employers who drafted and enforced overly-broad social media policies. The effect of those polices was to stifle protected concerted activity by telling an employee that he or she could not utilize social media, or could not mention his or her employee in social media posts, or could not criticize his or her employer via social media, etc. In response to the NLRB’s focus on narrowing social media policies to except protected concerted activity, many employers simply included disclaimers or “saving clauses” in their social media polices. A “savings clause” or disclaimer, for example, might directly state the social media policy should not be interpreted to prohibit “protected concerted activity”.
In response to these one-size-fits all practice (among other concerns); the NLRB recently issued its second social media related memo. Within this memo, the NLRB highlighted a case in which an employee was reprimanded in front of others for failing to perform a task she had never been instructed to perform. Shortly thereafter, she updated her Facebook status to include an expletive followed by the name of her employer’s store, and subsequently updated her status to state that her employer did not appreciate its employees. Co-workers commented or “liked” her status each time. She was discharged for her status updates.
While the NLRB found that this discharged employee was not engaging in protected concerted activity, but rather making individual “gripes,” it also found that the employer’s social media policy was overly-broad, and could reasonably be interpreted by employees as prohibited protected concerted activity. Thus, it was deemed unlawful. Specifically, the policy in question provided that employees should generally avoid identifying themselves as an employee of their company, unless he or she was discussing the terms and conditions of his or her employment in an “appropriate manner”. The policy did not define what constituted an “appropriate” or “inappropriate” discussion of terms and conditions of employment, through specific examples or otherwise. Importantly, the policy also included a “saving clause” that provided (in sum) that the policy would not be interpreted or applied so as to interfere with employee rights to engage in concerted activities. However, the NLRB found that the “savings clause” was insufficient to cure ambiguities in the policy, and was thus, ineffective. Its reasoning was quite simple — an employee could not be reasonably expected to know what social media language/activity was “appropriate” and what language/activity was “inappropriate”. This finding now provides some much needed guidance to employers.
In light of the NLRB’s second social media memo, which specifically addresses the ineffectiveness of savings clauses and protected concerted activity disclaimers, it is ever more clear that employers must look carefully at their social media policies, tailor them to their specific business, and spell out for its employees, what rights are protected by the NLRA as protected concerted activities. Further, if a social media policy could reasonably be interpreted by an employee to prohibit or discourage protected concerted activities, it may violate the NLRA. Employers also need to make sure that their human resources department and management team are educated in what language and activity is protected by the NLRA, and how that language and activity might be expressed via social media, so that they are properly informed when implementing discipline in response to misuse of social media.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at firstname.lastname@example.org or at (859) 231-8780.
 The conversation amongst the discharged employees follows:
Employee A: bettie page would roll over in her grave.
Employee B: She already is girl!
Employee 1: 800 miles away yet she’s still continues our lives miserable. Phenomenal!
Employee B: And no one’s doing anything about it! Big surprise!
Employee C: “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.
Employee A: hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) see you tomorrow!