Originally published on June 1, 2011
It wasn't that long ago that e-mail was new. Today, it is a
routine form of communication, and social media websites such as
Facebook and Twitter have become a favored means of communication
for many. The way we communicate has changed, and for U.S.
employers, that change offers great opportunities, and great
challenges. Employees are now "tweeting" and
"facebooking," often during work hours and on
employer-owned equipment, and some of these communications may even
pertain to work-related issues and concern co-workers. As social
media continues to evolve, employers' rules regarding employee
communications, both while at work and while off work, must evolve
as well. Recent actions by the National Labor Relations Board
("NLRB") amplify the challenges faced by employers in
adapting their work rules to communications in the social media
world.
The National Labor Relations Act ("NLRA") protects the
rights of employees, whether unionized or not, to engage
in protected "concerted activities" with fellow
employees. As it relates to communication issues, the NLRA protects
the right of employees to discuss their working conditions, wages
and other terms of employment with one another. In the social media
age, that right to communicate bumps up against employers'
efforts to regulate social media exchanges by their employees.
Several recent cases at the NLRB highlight this tension, as
Regional Offices of the NLRB have issued complaints against
companies that have disciplined employees for engaging in social
media exchanges relating to their workplaces.
Last Fall, the Hartford, Connecticut office of the NLRB issued a
complaint against American Medical Response ("AMR") that
garnered national attention. Dawnmarie Souza, an emergency medical
technician for AMR in New Haven, got into a workplace dispute with
her supervisor. When she got home from work, she logged onto her
Facebook page, and created an angry post. She referred to her
supervisor in colorful and less than complimentary terms, and her
posting resulted in an online exchange with her co-workers who were
also critical of the supervisor. Ms. Souza's Facebook posting
clearly violated AMR's social media policy, which prohibited
employees from "making disparaging, discriminatory, or
defamatory comments when discussing the Company or the
employees' supervisors, co-workers and/or competitors."
Ms. Souza was thus fired.
Ms. Souza filed a complaint against AMR with the NLRB, which
issued a complaint alleging that AMR had violated the NLRA by
discharging Ms. Souza. In a nutshell, the NLRB alleged that by
making critical remarks about her supervisor to other employees,
even through a Facebook page that could be accessed by
non-employees, Ms. Souza was engaging in concerted activities
protected by the NLRA. In addition, the NLRB concluded that
AMR's social media policy itself violated the NLRA, because
AMR's restrictions on employee blogging, internet posting, and
communications purportedly interfered with and restrained employee
rights under the NLRA.
The AMR case settled in January, and the NLRB announced the
settlement in a February 7, 2011 press release that provided notice
to all employers of the NLRB's view of social media
policies:
that they do not improperly restrict employees from discussing
their wages, hours and working conditions with co-workers
and others while not at work, and that they would not discipline or
discharge employees for engaging in such discussions.
This AMR settlement has been followed by other complaints of a
similar ilk in other Regions. On May 9, the Buffalo office of the
NLRB issued a complaint against a New York non-profit, Hispanics
United of Buffalo, Inc., alleging that the non-profit violated the
NLRA by terminating five employees who had complained about their
working conditions in a Facebook discussion. Within the last two
weeks, the Chicago office of the NLRB issued a complaint against a
Chicago-area luxury car dealership after the dealership discharged
an employee for posting a message on his Facebook page that
involved employee concerns about the dealership's handling of a
sales event, and its impact on employee earnings.
It is important to note that the AMR case was resolved by
settlement, and the two more recent cases cited above have not been
tried, so there has been no new legal precedent, even by an
administrative law judge. In fact, as recently as 2009, the
NLRB's General Counsel issued an Advice Memorandum that
supported the legality of a social media policy prohibiting
"disparagement" of a company or its officers and
employees in any form of social media. However, the recent
complaints filed by the NLRB Regional Offices portend a change in
direction. Under new acting General Counsel Lafe Solomon, whose
office prosecutes alleged violations of the NLRA, the NLRB looks to
be moving in a direction that seeks to limit an employer's
right to implement and enforce social media policies that might
limit an employee's ability to communicate with co-workers
about the terms and conditions of his/her employment.
So what is an employer to do? We are advising employers not to
overreact, as the limits on an employer's right to regulate its
employees' use of social media is still to be determined by the
Board and ultimately, the courts. However, employers would be well
served to review their social media policies and to revise policies
that might be read to limit the right of employees to communicate
about the terms and conditions of their employment. At a minimum,
revisions might include a disclaimer, at least to the extent that
the social media policy will not be applied so as to interfere with
an employee's rights under the NLRA. As with all policies, the
content and breadth of the disclaimer should be tailored to the
particular needs and industry of the employer. In addition to
revisions to written policy, employers are advised to consider
employee rights under the NLRA before imposing discipline for
violations of social media policies, and to consult with counsel
before imposing such discipline.
This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.
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