Are We Really Surprised? NLRB Takes on Facebook Comments

Attorney Gerald Lutkus of the South Bend, IN office of the law firm Barnes and Thornburg LLP
Attorney Gerald Lutkus of the South Bend, IN office of the law firm Barnes and Thornburg LLP.

By Gerald F. Lutkus

Are we really surprised? We all knew it would come. Sooner or later the “New NLRB” was going to focus on social networking policies and find a broadly written and overreaching social networking policy to violate Section 7 of the National Labor Relations Act.

In many respects, the NLRB’s recent complaint filed on behalf of an employee terminated for her off-duty Facebook comments about a supervisor could just as easily have happened in past years over comments at a bowling alley, or statements shared and overheard in the stands at a Little League game.

The regulation of off-duty comments by employees has always been extremely difficult in a unionized setting. In a non-union setting, the concern was always whether an employer’s policies or its enforcement of them would end up interfering with protected concerted activity by employees.

One would think that the litigation over this recent charge should be straightforward involving rules that shouldn’t change all that much from past rules about off-duty comments. Not so fast my friend, as ESPN College Football analyst Lee Corso is wont to say. We can be sure that this new National Labor Relations Board will aggressively protect workers’ perceived rights and readily trample upon employers’ rights. The Board’s recent decision in Plaza Auto Center, where they reinstated an employee who called his boss in a meeting with others a “f***ing mother f***er”, a “f***ing crook” and “an a**hole,” does give us some pause to consider how far the Board will go to protecting employees’ rights.

So what do we need to be worried about as the Facebook case progresses through the system?

Do you have an employee communication policy that may be facially invalid?

This concern is not limited to those who have adopted social networking policies. If your company has a non-disparagement clause in an employee handbook, or a no criticism of management clause, or even a social networking clause that touches on criticism of management, then special care must be taken to make certain that the policy on its face might not be found to be facially invalid with the new regime at the NLRB.

The question is, could your policy be reasonably viewed as chilling the employees’ rights under Section 7 to act together to discuss and perhaps impact the terms and conditions of their employment? If it does, your policy is at risk.

The current Facebook case certainly shows how ephemeral that standard may be. In an advice memorandum dated December 4, 2009, NLRB Office of the General Counsel, concluded that an employer’s social media policy did not violate Section 8(a)(1) of the National Labor Relations Act because it could not be reasonably interpreted in a way that would chill Section 7 activity. In that case, the employer, Sears Holdings, had a social media policy which prohibited, among other things:

Disparagement of Company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.

There was no evidence that the employer had used the policy to discipline any employees for engaging in protected activity, nor was there evidence that the policy was enacted in response to union activity. Either would render the policy unenforceable. The General Counsel’s Office concluded that the complaint should be dismissed because the policy could not reasonably be interpreted to prohibit Section 7 protected activity.

A new Board, a new perspective

Less than a year later, with the new pro-union majority in place on the NLRB, the NLRB is now attacking a policy which states:

Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.

That provision is virtually identical to the provision in the Sears Holding Company advice memorandum which the General Counsel’s Office found could not be reasonably construed to chill the exercise of Section 7 rights. A new Board. A new perspective.

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As a result, if an employer has a social networking policy or simply some type of anti-disparagement policy, that employer must carefully review the policy to determine whether, as written, it could be found to chill the exercise of Section 7 rights.

Eliminate the anti-disparagement language. Under the current regime, that’s going to be found to chill Section 7 rights. Also, create a separate provision that prohibits off-duty social networking comments that violate the company’s anti-discrimination and anti-harassment policies, rather than lumping the defamatory, disparaging and discriminatory restrictions together.

If you move to discipline or terminate an employee for off-duty social networking commentary, you must consider whether the commentary is truly protected concerted activity.

A glimpse of where the NLRB might go

Certainly, there are off- or on-duty comments that even this Board would recognize as being outside the scope of protected Section 7 comments. The language/conduct must be both “concerted” and “protected.” In that it must, “(1) involve a work-related complaint or grievance; (2) further some group interest; (3) seek a specific remedy or result; and, (4) not be unlawful or otherwise improper.  (See NLRB v. Robertson Industries, 9th Cir. 1976). And it can be only one person who is acting collectively for the benefit of others, so even a friendless Facebook comment might qualify.

But, the new NLRB has given us a glimpse of where it might go with this in its recent decision in Plaza Auto Center, Inc.. The Board applied an historic test from a 1979 decision and concluded that an employee’s profane and threatening language to the owner of the business was concerted and protected activity because it occurred within the context of an employee persistently bugging the owner and his manager about lunch time, restroom breaks, and minimum pay wage. We can read that to mean that employee speech will be given great leeway as long as there is some connection to the terms and conditions of employment.

Where will the line be? One would hope that an employee who makes a direct threat of physical violence against a supervisor in a Facebook posting would be outside the scope of Section 7 protections. Likewise, an employee posting confidential company information on Facebook would still seem to be subject to termination under a social networking policy without running afoul of Section 7.

So, be careful how you write your policy. Be careful how you enforce it. Is that all that different?

Note: This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

Gerald F. Lutkus is a partner in the South Bend, Indiana office of Barnes & Thornburg LLP (www.btlaw.com) and a member of the firm’s Labor and Employment Law Department. A member of the firm’s Litigation Department and co-chair of the Media Practice Group, he practices in the areas of labor and employment law counseling and litigation, arbitration, collective bargaining and media law. Contact him at gerald.lutkus@BTlaw.com.

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