The NLRB Wants to Be Your 'Friend'

The popular social networking website Facebook currently boasts 750 million active users, 50% of whom log in on any given day. A recent study by the Pew Research Center indicates that 13% of Americans use Twitter. Google+, the new social networking upstart that is expected to give Facebook a run for its money, grew to more than 40 million users after opening up to the public in September. LinkedIn, a more professional social networking site, reached 100 million users in March. Finally, many others utilize alternate social networking websites, including MySpace, as well as blogs, e-mail list servs, or online chat rooms.

Social Media Policies Revisted

These numbers are impressive to say the least, but what do they mean for employers? Well, given the popularity of such sites, it is likely that employees are using at least one form or another of social media. Odds are that employees use the sites to post information about their workplace, supervisors or co-workers. Recognizing this trend, many employers have implemented ' or at least considered implementing ' Internet and social media policies in an effort to protect their reputations, protect their employees, and prevent the dissemination of confidential or proprietary information on the Internet. Many of these policies likely contain blanket prohibitions of disparaging, discriminatory or defamatory remarks in relation to the company or its employees. These policies seem to make perfect sense, but unfortunately, employers need to re-think them in light of the National Labor Relations Board's (NLRB) recent decision in Hispanics United of Buffalo, Inc., Case No. 3-CA-27872, 2011 NLRB LEXIS 503 (N.L.R.B. Sept. 2, 2011).

Hispanics United

Hispanics United of Buffalo, Inc. is a nonprofit corporation that provides social services to economically disadvantaged individuals. It drew the NLRB's ire after it fired five employees for their Facebook exchange in which employee Mariana Cole-Rivera, a non-unionized employee, posted regarding her co-worker Lydia Cruz-Moore's allegations that the agency's employees failed to do enough to serve their clients. In the post, Cole-Rivera asked her co-workers how they felt about the allegations, and five employees posted responses on Facebook, defending their performance and complaining about their working conditions, including staffing levels and their workload. None of the posts attacked Cruz-Moore, and they did not take place during working hours or on Hispanics United's computers. Cruz-Moore was scheduled to meet with management regarding her concerns about her co-workers' performance before Cole-Rivera's Facebook post.

Hispanics United fired Cole-Rivera and four other employees who posted after it learned of the Facebook exchange, claiming that their posts constituted harassment of Cruz-Moore. The NLRB disagreed and filed a complaint against Hispanics United on May 9, 2011. In its complaint, the NLRB alleged that the fired employees' Facebook posts constituted protected concerted activity under '7 of the National Labor Relations Act (NLRA) and that as a result, Hispanics United's actions violated '8(a)(1) of the Act, which prohibits employers from punishing employees engaged in protected concerted activity. The case was tried in July 2011, and a decision was issued on Sept. 2, 2011. In the decision, the administrative law judge held, for the first time ever, that the employees' discussion of their work on Facebook constituted protected concerted activity. The judge then ordered Hispanics United to reinstate the terminated employees and to provide back pay and lost benefits.

American Medical Response

While the Hispanics United case is the first decision of its kind, it was not the first time the NLRB has gone after employers for taking disciplinary action against their employees for their social media postings. In fact, the NLRB started its pursuit in late October 2010, when it filed a complaint against American Medical Response of Connecticut (AMR), an ambulance service company, after it fired one of its medical technicians for posting disparaging messages about her supervisor on Facebook. The AMR employee in question, Dawnmarie Souza, called her supervisor a scumbag and referred to him as a psychiatric patient on her Facebook page. Several of Souza's co-workers responded in a supportive manner, and that led to additional derogatory comments about Souza's supervisor. After it discovered the posts, AMR terminated Souza for violation of its social media policy, which prohibited employees from “making disparaging, discriminating or defamatory comments when discussing the company or the employees' supervisors, co-workers and/or competitors.” AMR's policy also prohibited employees from depicting the company in any way on Facebook or other social media sites on which employees posted pictures of themselves.

In response to the firing, the NLRB filed a complaint claiming that AMR interfered, restrained, or coerced employees engaged in the exercise of their '7 rights. The NLRB also alleged that AMR's social media policy itself violated the NLRA because it “interfere[d] with, restrain[ed] and coerc[ed] employees in the exercise of the rights guaranteed in Section 7 of the Act '.”

A hearing was set for Jan. 25, 2011, but the case settled the day before. As part of the settlement, AMR agreed to revise its “overly broad” social media policy to allow employees to discuss working conditions, including their wages and hours, on social media sites. AMR also agreed to not discipline or fire employees for engaging in these activities and separately settled the employee's individual claims.

Knauz Motors

The NLRB also filed a complaint on May 20, 2011 against Karl Knauz Motors, Inc. (Knauz Motors), a Chicago-area car dealer, for its termination of an employee after he posted negative commentary about his employer on his Facebook page. The Facebook posts that led to the termination arose out of an event at which Knauz was promoting a new BMW model. Robert Becker, a Knauz salesperson, felt that the dealership botched the event by offering hotdogs and bottled water to its customers instead of high-end appetizers. Becker expressed his displeasure on Facebook, and he included pictures of the food. Several of Becker's co-workers agreed with him, and the salespeople worried that the event might harm their sales.

Knauz Motors subsequently discovered Becker's Facebook posts and asked him to remove them. Becker complied, but Knauz terminated him a week later. Knauz Motors claims that it fired Becker for reasons other than his Facebook posts, but the NLRB filed its complaint anyway, alleging that Becker's Facebook posts were protected under '7 and that Knauz violated the NLRA by terminating his employment. This matter has yet to be resolved.

Unfortunately, Hispanics United, AMR, and Knauz Motors are not the only employers doing battle with the NLRB over Internet/social media policies and employees' usage of social media to discuss their employers. In fact, the NLRB recently stated that all 52 of its regions currently have active complaints related to employees' social media use as protected concerted activity. Further, in addition to filing complaints, the NLRB has threatened to file complaints against companies, including Thomson Reuters, if they refuse to settle employee complaints about adverse actions resulting from social media usage. Given all of its actions, it is clear that the NLRB has made this issue a top priority, and that spells trouble for employers' Internet/social media policies or employers that have taken adverse action against employees for employment-related social media posts.

Some Good News

Despite the gloom and doom above, there is some good news too. Recently, three NLRB Regional Directors have made it clear that not all employer-related social media posts by employees are protected concerted activity, and in each of those cases, the Regional Directors recommended dismissal of a filed complaint.

The first case, from July 7, 2011, involved a bartender employee of JT's Porch Saloon and Eatery, Ltd. (“JT's”) who complained verbally about his employer's tipping policy and then complained to his stepsister about the same policy and his working conditions generally on Facebook. The bartender never discussed the Facebook post with his co-workers, and none of them responded to it. Approximately a week later, JT's fired the bartender for his Facebook posts, but the Regional Director concluded that JT's did not violate '8(a)(1) of the NLRA because the bartender's actions did not constitute protected concerted activity. The bartender's Facebook post did not grow out of his previous griping, the bartender did not discuss his Facebook post with any other employees, and none of his co-workers responded to it. Moreover, the bartender did not attempt to bring the bartenders' complaints to management.

In the second case, from July 19, 2011, a Wal-Mart employee posted complaints about his working conditions on his Facebook page, and while several of his co-workers responded sympathetically, they did not engage in a conversation about their working conditions. Wal-Mart disciplined the employee, and the charge followed. The Regional Director concluded that the posts were simply individual gripes rather than concerted activity, and as such, he recommended that the charge be dismissed.

Finally, in the third case, also from July 19, 2011, an employee of Martin House, a residential facility for homeless people, engaged in a Facebook conversation with two friends about her job and the residents, essentially poking fun at some of them. Upon discovery of the conversation, Martin House terminated the employee and the complaint followed. The Regional Director concluded that the employee's actions did not constitute protected concerted activity because she did not discuss the posts with any of her fellow employees.

Regardless of the recent recommendations for dismissal by Regional Directors, it is still clear that the NLRB is determined to continue its aggressive pursuit of this issue, particularly given the high number of outstanding cases. As a result, employers must take action to protect themselves if and when the NLRB comes calling.

Protecting Employers

Fortunately, there are some concrete actions employers can take to enhance their protection against such complaints. First, though it might seem risky in light of the Hispanics United decision and the NLRB's recent actions, employers should continue to maintain already established Internet/social media policies and should establish such policies if they do not exist. These policies are still valuable as they provide protection for both the employer and the employee. Rather than throw out the policy completely, employers should take the following steps to avoid running afoul of the NLRB:

• Do not include blanket prohibitions of employee speech related to work and working conditions like the one included in AMR's policy. Such policies may draw the attention of the NLRB even if an employer does not take adverse action against an employee.
• Include a provision that expressly states that the policy does not prevent employees from discussing their working conditions, including but not limited to their wages, hours, workload, etc.
• Expressly state that any confidentiality provisions do not prohibit an employee from discussing his or her own wages or working conditions.
• Do not prohibit employees from identifying themselves as company employees.
• Expressly explain that the policy is meant to protect both the employer and the employee and ask the employee to think twice about Internet/social media usage in relation to the company. Note that negative posts about the employer can reflect poorly on the employee as well.
• Be aware of union organization when considering implementation of the policy; drafting or revising the policy in the face of union organizing activities could draw a complaint.

Furthermore, and despite the Hispanics United decision and the NLRB's recent actions, an Internet/social media policy can and should still prohibit disclosure of the company's or the company's clients' confidential or proprietary information as well as disclosure of legally protected private information, such as medical information protected by HIPAA. Additionally, the policy can and should still prohibit harassment and discrimination, obscenity, and disloyalty, which amounts to defamatory and false statements.

In addition to drafting or revising Internet/social media policies, employers should educate supervisors about the policies, particularly in relation to employees' '7 concerted activity rights. Supervisors should be instructed to hold off on immediately disciplining or terminating employees in response to social media posts about the employer, their supervisors, or their co-workers as those posts could constitute protected concerted activity. Supervisors should also consider involving human resources or legal counsel before taking action.

Finally, employers must educate their employees about their Internet/social media policies. In doing so, employers should explain the employees' obligations under the policy and also emphasize that nothing in the policy is meant to limit their right to discuss their working conditions via social media.

The popular social networking website Facebook currently boasts 750 million active users, 50% of whom log in on any given day. A recent study by the Pew Research Center indicates that 13% of Americans use Twitter. Google+, the new social networking upstart that is expected to give Facebook a run for its money, grew to more than 40 million users after opening up to the public in September. LinkedIn, a more professional social networking site, reached 100 million users in March. Finally, many others utilize alternate social networking websites, including MySpace, as well as blogs, e-mail list servs, or online chat rooms.

Social Media Policies Revisted

These numbers are impressive to say the least, but what do they mean for employers? Well, given the popularity of such sites, it is likely that employees are using at least one form or another of social media. Odds are that employees use the sites to post information about their workplace, supervisors or co-workers. Recognizing this trend, many employers have implemented ' or at least considered implementing ' Internet and social media policies in an effort to protect their reputations, protect their employees, and prevent the dissemination of confidential or proprietary information on the Internet. Many of these policies likely contain blanket prohibitions of disparaging, discriminatory or defamatory remarks in relation to the company or its employees. These policies seem to make perfect sense, but unfortunately, employers need to re-think them in light of the National Labor Relations Board's (NLRB) recent decision in Hispanics United of Buffalo, Inc., Case No. 3-CA-27872, 2011 NLRB LEXIS 503 (N.L.R.B. Sept. 2, 2011).

Hispanics United

Hispanics United of Buffalo, Inc. is a nonprofit corporation that provides social services to economically disadvantaged individuals. It drew the NLRB's ire after it fired five employees for their Facebook exchange in which employee Mariana Cole-Rivera, a non-unionized employee, posted regarding her co-worker Lydia Cruz-Moore's allegations that the agency's employees failed to do enough to serve their clients. In the post, Cole-Rivera asked her co-workers how they felt about the allegations, and five employees posted responses on Facebook, defending their performance and complaining about their working conditions, including staffing levels and their workload. None of the posts attacked Cruz-Moore, and they did not take place during working hours or on Hispanics United's computers. Cruz-Moore was scheduled to meet with management regarding her concerns about her co-workers' performance before Cole-Rivera's Facebook post.

Hispanics United fired Cole-Rivera and four other employees who posted after it learned of the Facebook exchange, claiming that their posts constituted harassment of Cruz-Moore. The NLRB disagreed and filed a complaint against Hispanics United on May 9, 2011. In its complaint, the NLRB alleged that the fired employees' Facebook posts constituted protected concerted activity under '7 of the National Labor Relations Act (NLRA) and that as a result, Hispanics United's actions violated '8(a)(1) of the Act, which prohibits employers from punishing employees engaged in protected concerted activity. The case was tried in July 2011, and a decision was issued on Sept. 2, 2011. In the decision, the administrative law judge held, for the first time ever, that the employees' discussion of their work on Facebook constituted protected concerted activity. The judge then ordered Hispanics United to reinstate the terminated employees and to provide back pay and lost benefits.

American Medical Response

While the Hispanics United case is the first decision of its kind, it was not the first time the NLRB has gone after employers for taking disciplinary action against their employees for their social media postings. In fact, the NLRB started its pursuit in late October 2010, when it filed a complaint against American Medical Response of Connecticut (AMR), an ambulance service company, after it fired one of its medical technicians for posting disparaging messages about her supervisor on Facebook. The AMR employee in question, Dawnmarie Souza, called her supervisor a scumbag and referred to him as a psychiatric patient on her Facebook page. Several of Souza's co-workers responded in a supportive manner, and that led to additional derogatory comments about Souza's supervisor. After it discovered the posts, AMR terminated Souza for violation of its social media policy, which prohibited employees from “making disparaging, discriminating or defamatory comments when discussing the company or the employees' supervisors, co-workers and/or competitors.” AMR's policy also prohibited employees from depicting the company in any way on Facebook or other social media sites on which employees posted pictures of themselves.

In response to the firing, the NLRB filed a complaint claiming that AMR interfered, restrained, or coerced employees engaged in the exercise of their '7 rights. The NLRB also alleged that AMR's social media policy itself violated the NLRA because it “interfere[d] with, restrain[ed] and coerc[ed] employees in the exercise of the rights guaranteed in Section 7 of the Act '.”

A hearing was set for Jan. 25, 2011, but the case settled the day before. As part of the settlement, AMR agreed to revise its “overly broad” social media policy to allow employees to discuss working conditions, including their wages and hours, on social media sites. AMR also agreed to not discipline or fire employees for engaging in these activities and separately settled the employee's individual claims.

Knauz Motors

The NLRB also filed a complaint on May 20, 2011 against Karl Knauz Motors, Inc. (Knauz Motors), a Chicago-area car dealer, for its termination of an employee after he posted negative commentary about his employer on his Facebook page. The Facebook posts that led to the termination arose out of an event at which Knauz was promoting a new BMW model. Robert Becker, a Knauz salesperson, felt that the dealership botched the event by offering hotdogs and bottled water to its customers instead of high-end appetizers. Becker expressed his displeasure on Facebook, and he included pictures of the food. Several of Becker's co-workers agreed with him, and the salespeople worried that the event might harm their sales.

Knauz Motors subsequently discovered Becker's Facebook posts and asked him to remove them. Becker complied, but Knauz terminated him a week later. Knauz Motors claims that it fired Becker for reasons other than his Facebook posts, but the NLRB filed its complaint anyway, alleging that Becker's Facebook posts were protected under '7 and that Knauz violated the NLRA by terminating his employment. This matter has yet to be resolved.

Unfortunately, Hispanics United, AMR, and Knauz Motors are not the only employers doing battle with the NLRB over Internet/social media policies and employees' usage of social media to discuss their employers. In fact, the NLRB recently stated that all 52 of its regions currently have active complaints related to employees' social media use as protected concerted activity. Further, in addition to filing complaints, the NLRB has threatened to file complaints against companies, including Thomson Reuters, if they refuse to settle employee complaints about adverse actions resulting from social media usage. Given all of its actions, it is clear that the NLRB has made this issue a top priority, and that spells trouble for employers' Internet/social media policies or employers that have taken adverse action against employees for employment-related social media posts.

Some Good News

Despite the gloom and doom above, there is some good news too. Recently, three NLRB Regional Directors have made it clear that not all employer-related social media posts by employees are protected concerted activity, and in each of those cases, the Regional Directors recommended dismissal of a filed complaint.

The first case, from July 7, 2011, involved a bartender employee of JT's Porch Saloon and Eatery, Ltd. (“JT's”) who complained verbally about his employer's tipping policy and then complained to his stepsister about the same policy and his working conditions generally on Facebook. The bartender never discussed the Facebook post with his co-workers, and none of them responded to it. Approximately a week later, JT's fired the bartender for his Facebook posts, but the Regional Director concluded that JT's did not violate '8(a)(1) of the NLRA because the bartender's actions did not constitute protected concerted activity. The bartender's Facebook post did not grow out of his previous griping, the bartender did not discuss his Facebook post with any other employees, and none of his co-workers responded to it. Moreover, the bartender did not attempt to bring the bartenders' complaints to management.

In the second case, from July 19, 2011, a Wal-Mart employee posted complaints about his working conditions on his Facebook page, and while several of his co-workers responded sympathetically, they did not engage in a conversation about their working conditions. Wal-Mart disciplined the employee, and the charge followed. The Regional Director concluded that the posts were simply individual gripes rather than concerted activity, and as such, he recommended that the charge be dismissed.

Finally, in the third case, also from July 19, 2011, an employee of Martin House, a residential facility for homeless people, engaged in a Facebook conversation with two friends about her job and the residents, essentially poking fun at some of them. Upon discovery of the conversation, Martin House terminated the employee and the complaint followed. The Regional Director concluded that the employee's actions did not constitute protected concerted activity because she did not discuss the posts with any of her fellow employees.

Regardless of the recent recommendations for dismissal by Regional Directors, it is still clear that the NLRB is determined to continue its aggressive pursuit of this issue, particularly given the high number of outstanding cases. As a result, employers must take action to protect themselves if and when the NLRB comes calling.

Protecting Employers

Fortunately, there are some concrete actions employers can take to enhance their protection against such complaints. First, though it might seem risky in light of the Hispanics United decision and the NLRB's recent actions, employers should continue to maintain already established Internet/social media policies and should establish such policies if they do not exist. These policies are still valuable as they provide protection for both the employer and the employee. Rather than throw out the policy completely, employers should take the following steps to avoid running afoul of the NLRB:

• Do not include blanket prohibitions of employee speech related to work and working conditions like the one included in AMR's policy. Such policies may draw the attention of the NLRB even if an employer does not take adverse action against an employee.
• Include a provision that expressly states that the policy does not prevent employees from discussing their working conditions, including but not limited to their wages, hours, workload, etc.
• Expressly state that any confidentiality provisions do not prohibit an employee from discussing his or her own wages or working conditions.
• Do not prohibit employees from identifying themselves as company employees.
• Expressly explain that the policy is meant to protect both the employer and the employee and ask the employee to think twice about Internet/social media usage in relation to the company. Note that negative posts about the employer can reflect poorly on the employee as well.
• Be aware of union organization when considering implementation of the policy; drafting or revising the policy in the face of union organizing activities could draw a complaint.

Furthermore, and despite the Hispanics United decision and the NLRB's recent actions, an Internet/social media policy can and should still prohibit disclosure of the company's or the company's clients' confidential or proprietary information as well as disclosure of legally protected private information, such as medical information protected by HIPAA. Additionally, the policy can and should still prohibit harassment and discrimination, obscenity, and disloyalty, which amounts to defamatory and false statements.

In addition to drafting or revising Internet/social media policies, employers should educate supervisors about the policies, particularly in relation to employees' '7 concerted activity rights. Supervisors should be instructed to hold off on immediately disciplining or terminating employees in response to social media posts about the employer, their supervisors, or their co-workers as those posts could constitute protected concerted activity. Supervisors should also consider involving human resources or legal counsel before taking action.

Finally, employers must educate their employees about their Internet/social media policies. In doing so, employers should explain the employees' obligations under the policy and also emphasize that nothing in the policy is meant to limit their right to discuss their working conditions via social media.