National Labor Relations Board (“NLRB”) Archives

Social Media Policies and the NLRB

Posted on March 27, 2017May 2, 2022 by Richard Friedman

The National Labor Relations Board (“NLRB”) has continued to shape social media policies and practices at work for both employers and employees through recent decisions. This article will briefly discuss several such decisions which shed light on National Labor Relations Act (“NLRA”)-protected union activities, the standards for employees’ disloyalty, and the standards for appropriate social media policies implemented by employers.

In Pier Sixty, LLC, Nos. 02-CA-068612 and 02-CA-070797, an employee of a catering company posted “obscene vulgarities” on his Facebook page regarding a manager’s mistreatment of certain employees two days before a union representation election and was fired soon thereafter. The Board adopted the decision of the administrative law judge who had applied the totality of circumstances test to evaluate the employee’s post. The judge considered the following factors:

1. whether the record contained any evidence of the Respondent’s anti-union hostility;

2. whether the Respondent provoked Perez’ conduct;

3. whether Perez’ conduct was impulsive or deliberate;

4. the location of Perez’ Facebook post;

5. the subject matter of the post;

6. the nature of the post;

7. whether the Respondent considered language similar to that used by Perez to be offensive;

8. whether the employer maintained a specific rule prohibiting the language at issue; and

9. whether the discipline imposed upon Perez was typical of that imposed for similar violations or disproportionate to his offense.

In consideration of the above, the judge found that the employee’s conduct was not so egregious as to lose the protection under the Act and that the employer had violated the Act by discharging the employee for his protected, concerted comments made on social media two days before the election for union representation. This decision has been appealed to the Second Circuit.

Similarly, in Novelis Corporation, No. 03-CA-121293, et al., the Board affirmed an administrative law judge’s finding that the employer was in violation of the NLRA by demoting an employee for his protected, concerted comments on Facebook. In this instance, the employee had merely expressed discontent regarding the conditions of his employment without disparaging the employer or demonstrating disloyalty.

An evaluation of employees’ disloyalty occurred in a subsequent decision made in September 2016 in DirecTV, Inc. v. NLRB, No. 11-1273. After a group of technicians interviewed with a local television news station and complained about their company’s new pay policy scheme, they were fired for participating in the interview. The Board found that the interview was a protected activity under the NLRA, the employees’ statements being within the Act’s protection. The D.C. Circuit Court of Appeals affirmed the Board’s ruling, finding that the employees’ complaints were protected under the following NLRA two-prong test: 1) the complaints were related to an ongoing labor dispute; and 2) the employees’ actions were not disloyal or maliciously untrue. The Board concluded that the technicians had little, if any, control over the editing of the interview, their statements were not untrue, and the statements were not made “recklessly without regard for the financial consequences to” the company.

The Board continues to push back on overly restrictive social media policies put in place by certain employers. In Chipotle Services LLC d/b/a Chipotle Mexican Grill, Nos. 04-CA-147314 and 04-CA-149551, an employee was asked to delete some tweets he had posted on his personal Twitter account through which he communicated with customers and discussed negative working conditions. The Board found that the employer had violated NLRA §8(a)(1) by maintaining a rule entitled “Social Media Code of Conduct” which prohibited employees from posting “incomplete, confidential, or inaccurate information” and making “disparaging, false, or misleading” statements. The Board noted that when rules are overly broad in scope or restrictive, they may interfere with employees’ lawful exercise of their rights under Section 7 of the NLRA, i.e., protected concerted activities.

However, there are situations where employees will lose the protection of the Act when they post certain types of information on social media. For example, if an employee posts insubordination plans in great detail on social media, the employee will lose the protection of the Act. In Richmond District Neighborhood Center, Nos. 20-CA-091748, two employees, who led after school activities for students, exchanged information on Facebook regarding planned insubordination in specific detail, including what kind of people they would invite to their events and what type of things they would teach the kids the following year. The Board found that the employees’ Facebook postings described specific insubordinate acts that were objectively so egregious as to lose the Act’s protection and concluded that the Center’s rescission of the employees’ job offers for the following year was justified because they were unfit to work there.

Richard B. Friedman

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Employer Social Media Practices/Policies and the NLRA

Posted on September 7, 2016May 2, 2022 by Richard Friedman

In recent years, as the use of social media has exploded, the National Labor Relations Board (“NLRB”) has received allegations of improper discipline of employees for social media postings as well as complaints condemning employer social networking policies. We briefly discuss a few of those decisions below.

In what came to be known as “the first Facebook case,” American Medical Response of Connecticut, Inc., No. 34-CA-12576, an employee criticized her supervisor in a Facebook post for denying her Union representation, which triggered responses from co-workers voicing their support. The employee was suspended the following day and later discharged. The NLRB alleged in a complaint that the employer’s internet and social media policies were overly broad and violated Section 7 of the National Labor Relations Act (the “NLRA” or “Act”), which gives employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB’s complaint also alleged that the employee was unlawfully terminated for engaging in protected concerted activity when she posted on Facebook. The NLRB stressed that employees must be permitted to discuss the terms and conditions of their employment with co-workers. The NLRB asserted that the employer violated the NLRA when it discharged the employee for posting comments on Facebook that prompted support from other employees. The case settled when the employer agreed to substantially narrow the scope of its social media policies.

The NLRB addressed whether an employee could be fired for selecting the “like” option on a Facebook post in Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31. The NLRB found that the employer, a bar and restaurant, violated Section 8(a)(1) of the NLRA by unlawfully discharging two employees for their protected, concerted participation in a Facebook discussion in which they criticized perceived errors in their employer’s tax withholding calculations because such communications constituted concerted activities protected by the NLRA.

One of the discharged employees was terminated for “liking” a Facebook post by a former employee containing the discussion. Another employee used an expletive to describe the company co-owner. In finding the terminations unlawful, the NLRB stated that the test set out in Atlantic Steel, 245 NLRB 814, by which the Board determines whether an employee loses the Act’s protection for contemptuous workplace conduct that occurs during an otherwise protected activity, is not well-suited to address statements involving employees’ off-duty, off-site use of social media to communicate with other employees. Under the Atlantic Steel test, the Board balances the following four factors to determine whether an employee loses the Act’s 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 the employer’s unfair labor practices.

The Board stated that the first factor alone supported its conclusion that the Atlantic Steel framework should not be applied to the type of employee activities in this case.

Instead, the NLRB applied the tests articulated by the U.S. Supreme Court in the Jefferson Standard (346 U.S. 464(1953)) and Linn (383 U.S. 53 (1966)) cases to the employees’ comments. In Jefferson Standard, the Court had upheld the discharge of employees who publicly attacked the quality of their employer’s product and practices without tying such criticisms to a pending labor controversy. In Linn, the Court had limited state law remedies for defamation during a union-organizing campaign to those situations where the plaintiff could show that “the defamatory statements were circulated with malice” and caused damage. Linn v. Plant Guards Local, 383 U.S. at 64-65. Here, the NLRB concluded that the employees’ statements were neither disloyal nor defamatory under those standards because they neither disparaged the employer’s products or services or undermined its reputation and therefore did not lose the Act’s protection.

The Board also held that the company’s internet/blogging policy, which stated that “engaging in inappropriate discussions about the company, management, and/or co-workers” might constitute a violation of the law “and is subject to disciplinary action, up to and including termination of employment,” was overly broad and unlawfully restricted employees in the exercise of their rights under the Act.

The NLRB has also found that employees can lose protection under the NLRA if their conduct advocates insubordination. In Richmond District Neighborhood Center, 361 NLRB No. 74, the NLRB held that employees who engaged in specific discussions of planned insubordination on Facebook lost the protection they otherwise would have enjoyed under the NLRA. After two employees detailed their plans to disrupt the workplace and flaunted their disregard for their employer’s policies and procedures on Facebook, the discussions were reported by a co-worker who took screenshots of their exchange. Although the NLRB found the employees’ Facebook posts to be a concerted activity, the Board concluded that the employees had lost the protection of the NLRA since their statements advocated insubordination. The NLRB also considered the protracted length of the exchange between the employees and the detailed nature of the specific acts they advocated when determining that their statements had lost protection.

Richard B. Friedman