Employees’ Social Media Activity

On May 30, 2012, the National Labor Relations Board (NLRB) issued its third advice memorandum in the past year on employees’ protected social media activity, reminding employers that termination or discipline of an employee based on social media activity may be a violation of Section 7 the National Labor Relations Act (NLRA). Under Section 7, employees have the right to engage in "concerted activities" in collective bargaining or in efforts to improve working conditions and terms of employment. The purpose of this advisory is to alert heath care employers to the types of issues raised by the NLRB memoranda and what to avoid in preparing and implementing social media policies. Drafting and maintaining employer policies that are in compliance with the NLRB’s advice will require balancing of the rights of their employees to engage in concerted activity to improve working conditions with the company’s obligations to maintain patient privacy.

First Advisory: Determining “Concerted Activity”

The NLRB recently issued an advice memorandum on social media policies in August 2011. This advisory concerned an employee who had been discharged from his position after sending emails and posting Facebook comments claiming that his manager and co-workers were un-qualified and alleging that his manager was having affairs with her employees. In reaching its decision against the discharged employee’s claim, the NLRB determined that his emails and Facebook comments were not “concerted” activity and, therefore, not protected activity under Section 7 of the Act. The NLRB noted that it would consider social media comments made by individuals to be concerted activity if the comments deal with employees’ shared concerns about work place terms or conditions or are used to induce co-workers to engage in group activity. In finding against the employee, the NLRB found that the discharged employee in this case made complaints only on his own behalf and “not to advance any cause other than his own.” Furthermore, although the NLRB warned that social media policies that prohibited any complaints about management could violate employees’ rights under the NLRA; it found that the employer’s policy in this case was not overly broad and that the employee was discharged due to specific inappropriate conduct.

Second Advisory: Opprobrious Employee Conduct

In early 2012, the NLRB clarified that, even if engaged in protected activity, an employee may be lawfully discharged or disciplined if his or her conduct is “opprobrious” (i.e. outrageously shameful, disgraceful, or abusive) and causes a “major disruption” to the workplace. In this case, the disciplined employee used Facebook to complain about his co-workers and union activity. Furthermore, the employee issued racist threats against his co-workers both in person and over Facebook. The NLRB found that his conduct fell under protected activity due to the subject of his complaints, but his conduct was so opprobrious that it caused a major disruption to the workplace. Consequently, the NLRB found that the employee’s use of threats and racism resulted in a forfeiture of his Section 7 protection.

The NLRB looked at four factors: in determining if the employee’s conduct was so opprobrious to forfeit Section 7 protection: “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by an employer’s unfair labor practice.” Although the NLRB found that the employee’s subject matter fell under Section 7 protection, the NLRB found that the other factors weighed against protection. In particular, the place of discussion, over Facebook, involved widespread circulation of his complaints and led to a major disruption at the workplace. The nature of his outburst was racist and threatening. Furthermore, his outburst was not provoked by an unfair labor practice by the employer. Instead, the employee was complaining about his co-workers. Based on those factors, the NLRB found that his activity was not protected by Section 7.

Third Advisory: Overly Broad Social Media Policies

In its May 30, 2012 memorandum on employees’ social media activity, the NLRB reviewed an employer’s social media policy to determine if it was overbroad and in violation of Section 7. The employee in this case worked for Wal-Mart as a greeter. He was discharged after a customer complained about the employee’s Facebook comments that were disparaging to the poor and handicapped. The customer stated that she felt threatened and that she could not return to the store. Ultimately, the NLRB found that the Facebook comments were not protected activity since they did not address working conditions or complaints about his employment.

The NLRB outlined a two part inquiry to determine if a policy restricts activity protected by Section 7. First, a policy is in violation of Section 7 if it explicitly prohibits protected activity. Second, if the policy does not explicitly prohibit protected activity, it is violation if “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 Rights.”

The advice memorandum summarized seven different social media policies and provided examples of provisions that violate Section 7 of the Act. First, social media policies that are overly ambiguous about their application to Section 7 activities are unlawful. For example, a social media policy that prohibited “disrespectful conduct towards others” was unlawful, because it could be reasonably construed to include protected activity. On the other hand, a policy that specified the types of conduct prohibited to include “disloyal, disruptive, competitive, or damaging conduct" was lawful since those types of conduct would not be Section 7 activities. Rules prohibiting “negative conversations” about managers would be unlawful as it might include speech that is a protected activities. But a rule that forbids statements “which are slanderous or detrimental to the company” or “sexual or racial harassment” would not be construed to include protected activity. The NLRB found that policies prohibiting harassment, disclosure of trade secrets, and breach of confidentiality, or comments that would lead to a hostile work environment are all acceptable social media policies that would not restrict Section 7 protected activities.

Best Practice

Health care employers should implement social media policies that do not explicitly restrict employees’ Section 7 rights to engage in concerted activity in efforts to improve work place terms or conditions. Furthermore, employers must avoid broad social media policies that could be construed to prohibit Section 7 protected activity. Social media policies that prohibit any complaints about management or disrespectful comments could be construed by employees to limit complaints about work place terms or conditions, an activity protected by Section 7. Instead, health care employers should use social media policies that restrict or prohibit specific types of misconduct such as breach of patient privacy, sexual or racial harassment, or comments slanderous comments. Health care employers should also be careful not to discharge or discipline employees who engage in social media activity that could be considered protected activity without a careful analysis of the conduct in light of the NLRB’s memoranda.

If your organization needs assistance in employee policy review or in further interpreting the NLRB’s advice, please contact Peter Mellette (peter@mellettepc.com), Harrison Gibbs (harrison@mellettepc.com), or Nathan Mortier (nathan@mellettepc.com).

This Client Advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up to date and fact specific advice.
Categories: Client Advisory