cbaReport-March13 - page 7

March 2013 CBA REPORT
l
7
feature article
T
T
he proliferation of social media is-
sues in the workplace has created
a multitude of challenging new
problems for employers and the attorneys
who advise them. Employers are often
concerned with whether they can regu-
late the content an employee posts on the
internet if the posting is made while the
employee is off-duty and whether they
can prohibit an employee from using
the company’s name or image in social
media postings. Employers frequently
seek advice about whether their company
should implement a social media policy
and what should this policy say.
The National Labor Relations Board
has taken a keen interest in this area of
law and has published several lengthy
reports focused on employer-employee
social media issues. These reports detail
NLRB decisions involving employee
social media activity and also address
whether employer policies that limit em-
ployee social media use are overly broad
and could reasonably be interpreted as
restricting employee communications
that are protected under the National
Labor Relations Act.
1
Under Section 7 of the NLRA,
employees may engage in “protected,
concerted activity” without reprisal
from their employer.
2
There is protected,
concerted activity when two or more
employees act together to improve the
terms and conditions of their employ-
ment.
3
Section 8(a) of the Act prohibits
employers from interfering with employ-
ees’ Section 7 rights.
4
The NLRA applies
to both union and non-union employers.
Of course, with the recent ruling that
President Obama exceeded his constitu-
tional authority by making appointments
to the NLRB, the status of all recent rul-
ings by the NLRB is in flux.
5
The Federal
Appeals Court ruled that appointments
made to the NLRB Board during the
time the Senate was in recess were un-
constitutional. In response to the Court’s
ruling, legislation was introduced on
January 30, 2013 to freeze or overturn
virtually every NLRB decision in this
past year. The bill is entitled, the NLRB
Freeze Act of 2013 and was introduced by
John Barrasso, R-Wyo.
Recent NLRB Social Media Cases
The cases discussed in the NLRB re-
ports generally involve situations where
one or more employees used a social
media site, such as Facebook or Twitter,
to post a comment about some aspect
of their employment and the employer
then took an adverse action. In some of
the cases, other employees responded
with comments of their own. The NLRB
decisions demonstrate that whether this
online activity amounts to “protected,
concerted activity” and is thus protected
by the NLRA is an intensely fact-specific
inquiry.
In December 2012, the NLRB reaf-
firmed an administrative law judge’s
decision in favor of employees termi-
nated after they engaged in a Facebook
discussion critical of another employee’s
job performance.
6
An employee threat-
ened to complain to his supervisor that
his co-workers were not working hard
enough. In response, one co-worker
alerted other employees to the complaint
by posting on her Facebook page com-
ments about the complaint and soliciting
her co-workers’ views on the matter. Four
co-workers responded via Facebook and
all of the commenters were terminated.
The NLRB found that the online
activity of the employees was concerted
for the “purpose of mutual aid or pro-
tection” under Section 7 and that they
were unlawfully terminated. The Board
emphasized that the Facebook comments
in issue fell “well within the Act’s protec-
tion,” as they were “plainly centered” on
the topic of employee job performance.
This case clarifies an important point
for employers: employees can engage in
protected concerted activity, even if the
online conversations take place off-duty
and via their own computers.
Hispanics United argued in this case
that the posts should not be protected be-
cause they were a form of harassment or
bullying in violation of company policy.
The NLRB did not take well to this argu-
ment, concluding that the NLRA trumps
any workplace bullying or harassment
policy. However, the decision left open
the possibility that illegal harassment
on the basis of a status protected by law,
such as race, color, sex, religion, national
origin, age, disability, veterans status, or
other prohibited basis, would remove the
employees’ comments from the realm of
NLRA protection.
Two cases from the NLRB’s January
2012 report are also noteworthy in that
they featured similar facts but the Board
reached different conclusions regard-
ing whether the employees’ social media
posts were protected activity. In one
case, an employee posted a comment on
a co-worker’s Facebook page discussing
their supervisor’s job performance and
By Kelly A. Schoening and Katie Cassidy Tranter
Social Media:
A Tangled Web for Employers
1,2,3,4,5,6 8,9,10,11,12,13,14,15,16,17,...36
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