Facebook as the Water Cooler: Pitfalls for Employers

The rise of social media presents new legal challenges for employers. Companies concerned for their reputation and the risk of exposing the company to litigation and liability are developing and applying policies and practices that restrict employees' use of Facebook, Twitter and other social media or preclude embarrassing or derogatory online comments about the company. These policies may not survive review by the National Labor Relations Board (NLRB) unless they allow co-workers to freely discuss their job conditions with one another, even if the employees are non-union. As a general rule, employers cannot interfere or retaliate when two or more co-workers discuss improvements to or complaints about the terms and conditions of their employment, because such discussions are protected "concerted activity" under Section 7 of the National Labor Relations Act, 29 U.S.C. 157.

Recently, an NLRB administrative law judge opined that it makes no difference whether discussions between co-workers take place "around the water cooler" or on media such as Facebook and Twitter - all co-workers have the right to freely discuss terms or conditions of their employment. (Hispanics United of Buffalo v. Ortiz, No. 3-CA-27872, Sept. 2, 2011). In Hispanics United, a company wrongly fired five co-workers who engaged in a weekend Facebook discussion of a colleague's threats to report them to their supervisor for poor job performance. The judge brushed aside as "irrelevant" the company's argument that the Facebook postings were not protected because they were semi-public. The judge also found that profanities in the postings were not "outrageous outbursts" that forfeited Section 7 protection because the Facebook discussion occurred over the weekend, and not at work during normal business hours.

Still, not all employee use of social media will be protected concerted activity, even if the employee purports to be motivated by work complaints. Last week, an NLRB judge concluded that a car dealership "obviously" was within its rights to fire one of its salesmen who, "as a lark," posted offensive and "mocking" Facebook comments and photographs of a car accident that took place at the company, and which had no connection to any of his or his co-workers' job conditions, even though the salesman had other work-related complaints. (Karl Knauz Motors, Inc. v. Becker, No. 13-CA-46452, Sept. 28, 2011). The judge observed that the car salesman was engaged in protected activity when he posted about his frustrations with the quality of refreshments served at a dealership sales event - which were complaints related to his and his co-workers' concerns about the potential impact that the event would have on their sales commissions - but found that he was not disciplined for these protected postings. While the employer was within its rights in terminating the salesman, the judge opined that the dealership's employee policy, which forbade "disrespectful" comments outside the workplace and other discussions of the company outside the workplace, was overbroad and unlawful because the policy did not contain any exceptions for Section 7 activity.

Other NLRB decisions will continue to shape this rapidly developing area of law. On August 18, a report of the NLRB's Office of General Counsel cited additional examples of unlawful employer actions or overly broad policies that interfered with employees' protected Section 7 activities:

• Disciplining a salesman for using Facebook to discuss his and his co-workers' concerns relating to sales commissions (citing the example of the car dealership case later ruled on by the administrative law judge).
  
  
• Disciplining co-workers for using Facebook to discuss their employer's tax withholding practices.
  
  
• A policy that barred negative postings about the company and did not allow employees to post pictures of themselves on the Internet.
  
  
• A policy that forbade employees from discussing co-workers' private or confidential information (including wages and other job conditions).
  
  
• A policy that barred virtually all negative postings about the company as well as any postings that employees "would not want their manager or supervisor to see."
  
  
• A policy that the NLRB read to completely prohibit co-workers from "friending" one another on Facebook.

However, describing five other cases, the NLRB made it clear that, absent actual discussion with co-workers, an employee's "individual gripes" about job conditions are not protected under Section 7 merely because they are posted to Facebook or Twitter.

The bottom line: When crafting policies and applying practices involving employee use of social media, companies should include an exception allowing co-workers to discuss the terms and conditions of their employment consistent with their right to concerted activity under Section 7. Otherwise, an overbroad social media policy or practice that does not allow room for protected concerted activity may run afoul of Section 7 and create new liabilities for the company.

 

Related Attorneys: Deirdre A. Fox, Geoge D. Sax