cbaReport-March13 - page 8

March 2013 CBA REPORT
feature article
another employee’s negative attitude.
Other employees also posted comments
in response. The employee who initiated
the conversation was terminated.
The NLRB found that this discharge
was unlawful and that the comments
were concerted activity for the pur-
pose of mutual aid and protection. The
dispositive factors were that the posts
were directed to a group that included
co-workers and that the comments were
part of a discussion of employees’ shared
concerns about the terms and conditions
of employment. According to the NLRB,
it is well-established that employee com-
plaints about a supervisor’s attitude and
performance may be protected by the
Additionally, the Board noted
that the protest of supervisory actions is
protected conduct under Section 7.
However, the NLRB found that an
employee’s Facebook posts about an “ir-
ritating co-worker” were not protected
Here, the employee posted that
she would like to beat her co-worker with
a ventilator and that her co-worker did
not know what he was doing in his job
as a respiratory therapist. Several people
responded to the posts with comments of
their own, but they were not employees.
The NLRB found that the employee’s
posts were not protected because they
did not concern the terms and condi-
tions of employment. The employee was
merely complaining about her co-worker
and was not suggesting that her employer
should do anything about her complaint.
There was also a lack of concern in the
employees’ posts, since she did not dis-
cuss the posts with any of her co-workers
and she was not seeking to induce or
prepare for group action. The NLRB
found that these complaints were merely
a personal concern.
The lesson to be learned from these
cases is that an employee’s comments on
social media are generally not protected
if they are mere gripes not made in rela-
tion to group activity among employees.
If, however, the comments touch upon
working terms or conditions and other
employees add to the online discussion,
this is likely protected activity under the
NLRB’s recent rulings.
NLRB Rulings on Social Media
In devising a social media policy, em-
ployers should avoid using overly broad
language and should clearly define key
terms so that the policy is not construed
as restricting lawful employee activ-
ity. The Board’s decisions focus upon
the language used by employers in their
policies and whether the policies contain
examples or contextual qualifiers that
could be understood as placing limits on
application of the social media policy.
Importantly, employers cannot
prohibit their employees from making
comments about the employer on social
media sites. In one case, an employer’s
policy prohibited employees from engag-
ing in unprofessional communication
that could harm the employer’s reputa-
tion or mission. The NLRB found this
policy too broad because, according to
the Board, it could reasonably be inter-
preted by employees as a prohibition
on discussing the terms and conditions
of their employment, activity that is
protected under the NLRA. Similarly, a
policy which prohibited “defamatory”
posts about the company was deemed too
broad by the NLRB.
This provision was
unlawful because there was no guidance
as to what constituted a defamatory post.
The NLRB reasoned that a complaint
about working conditions might be con-
sidered defamatory by the employer, but
would still be protected speech under the
Employers also cannot prohibit
employees from identifying themselves
as employed by the company on social
media sites and cannot prohibit employ-
ees from using images of the company.
However, employers are certainly permit-
ted to create a social media policy which
prohibits the disclosure of confidential
information or the use of the company’s
trademarks. A recent policy found lawful
by the Board prohibited “the use of social
media to post or display comments about
coworkers or supervisors or the Employer
that are vulgar, obscene, threatening,
intimidating, harassing, or a violation of
the Employer’s workplace policies against
discrimination, harassment, or hostil-
L e a v e a l e ga c y o f
s e c u r e a b r i g h t
f uture
Encourage your clients to bring hope where there is despair,
love where there is loneliness and faith where there is emptiness.
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