Based on recent case law, when it comes to social media, human resources (HR) professionals need to be mindful of the scope of their policies, as well as the context of employee comments on that platform, according to the National Labor Relations Board (NLRB).
On Jan. 24, NLRB Acting General Counsel Lafe Solomon released his second report describing social media cases reviewed by his office. His Operations Management Memo covers 14 cases that involved whether an employee’s use of social media was a protected activity under federal labor law. Of those cases, half involved employer social media policies — five were found to be unlawfully broad, one was lawful and one was found lawful after being revised. Employee terminations based upon Facebook postings made up the balance of the cases. Here, several terminations were found to be illegal because they were based on unlawful policies. But in one case, an NLRB press release noted, the termination was upheld despite an unlawful policy because the employee’s posting was not work-related.
According to the press release, the report reinforces two key issues in Solomon’s earlier report :
- Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
- An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.
Solomon’s new report noted that social media issues and their treatment by the NLRB continue to be “a ‘hot topic’ among practitioners, human resource professionals, the media, and the public.” Accordingly, he has requested NLRB regional offices to send him “meritorious” cases “in the interest of tracking them and devising a consistent approach.” Currently, his office has about 75 cases.
Here’s a snapshot of two cases discussed in the report.
- Unlawful Discharge for Facebook Comments. An employee complained on Facebook about her job transfer to a less lucrative position. Some former employees posted in response. For example, one person said “commenting that only bad behavior gets rewarded, and that honesty, integrity, and commitment are a foreign language to them.” The next day, the employee was terminated after the employer showed her a copy of her Facebook wall. The employer’s policy prohibited, “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” The NLRB concluded that the employer’s actions were unlawful because, among other things: (a) its policy could be construed to restrict protected activity, such as statements that the employer is, for example, not treating employees fairly or paying them sufficiently; (b) the employee’s initial Facebook statement, and the discussion it generated, “clearly involved complaints about working conditions and the Employer’s treatment of its employees and clearly fell within the Board’s definition of concerted activity, which encompasses employee initiation of group action through the discussion of complaints with fellow employees”; and (c) the employer fired the employee specifically as a result of the protected nature of her posts, which were fostering additional discussion among employees about workplace problems.
- Employee’s “Venting” on Facebook Not Protected. An employee who felt ill and did not get a desired response from his supervisor posted comments on Facebook “using expletives” and indicating it was” too bad when your boss doesn’t care about your health.” No coworkers responded to his post, but in response to an inquiry from a non-coworker, he replied, in part, that he thought his employer was trying to give him a reason to be fired because he was about “a hair away from setting it off.” Ultimately, he was fired for violating company policy. The termination letter stated that his Facebook comments were inappropriate, threatening and violent — the HR manager interpreted “setting it off” as bringing a gun to the warehouse and shooting everyone in it, according to NLRB, rather than “just venting” as the employee contended. The NLRB concluded that employee did not engage in protected activity, because: (a) although his postings addressed his terms and conditions of employment, he did not seek to initiate or induce coworkers to engage in group action; (b) none of his coworkers responded to the postings with similar concerns; and (c) his postings were not an outgrowth of earlier employee meetings or attempts to initiate group action regarding the employer’s sick leave or absenteeism policy.
For more information on social media and HR, see Thompson Publishing Group’s Think Before You Click: Strategies for Managing Social Media in the Workplace.