With employees posting comments about their workplaces on Facebook, Twitter and other social media, employers face new and substantial risks when they attempt to regulate those communications through social media policies and disciplinary actions. Underscoring those risks, the National Labor Relations Board ("NLRB" or "Board") recently issued two new complaints against employers for firing employees who posted critical comments about them on Facebook. These complaints follow the Board's three prior attempts in recent months to set the stage for litigating social media policies and/or the discipline of employees for engaging in what the NLRB General Counsel views as protected, concerted activities on social media. Employers need to be aware of these developments as they craft their social media policies to comply with the National Labor Relations Act ("NLRA") - and before disciplining employees for comments posted on social media.
The Board's Social Media Cases
While the Board has yet to issue a decision on a social media policy, the NLRB's General Counsel has apparently made it a priority to identify cases in which to litigate these policies. On April 12, 2011, the General Counsel issued a Memorandum requiring the regional offices to submit to the NLRB Division of Advice all "[c]ases involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter." NLRB Gen. Couns. Mem. 11-11, at 2 (Apr. 12, 2011). This directive came in the midst of three prior Board challenges to social media policies in recent months, all of which settled in the early stages of litigation:
• In the first case, the General Counsel issued a complaint against American Medical Response ("AMR"), alleging that AMR violated the NLRA by firing an employee for posting negative remarks about her supervisor on Facebook and by maintaining and enforcing an overly broad Blogging and Internet Posting Policy prohibiting employees "from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers, and/or competitors." The case settled before trial.
• In the second case, the General Counsel found merit to an employee's unfair labor practice charge against build.com, after the company fired her for posting negative comments about the company on Facebook. The case settled before a complaint issued.
• In the third case, the General Counsel announced his intent to issue a complaint against Thomson Reuters Corp., challenging its social media policy and verbal discipline of an employee who "tweeted" that "one way to make this the best place to work is to deal honestly with Guild members." The case settled before a complaint issued.
The General Counsel's decision to issue complaints in these cases caught some employers by surprise because of a 2009 NLRB Advice Memorandum opining that a social media policy materially identical to AMR's Blogging and Internet Posting Policy was lawful. See NLRB Gen. Couns. Advice Mem., Sears Holdings (Roebucks) , 18-CA-19081 (Dec. 4, 2009). Like AMR's policy, Sears' social media policy prohibited using social media for the purpose of "[d]isparagement of company's or competitors' products, services, executive leadership, employees, strategy, and business prospects." Id. at 3 (emphasis omitted).
The Division of Advice applied the Board's decision in Lutheran Heritage Village-Livonia , 343 N.L.R.B. 646 (2004), to evaluate Sears' social media policy. In Lutheran, the Board had reaffirmed that a rule is unlawful if it "reasonably tends to chill employees in the exercise of their Section 7 rights." Id. at 646. The Board majority, however, cautioned that a rule must be given "a reasonable reading" and that the Board "must refrain from reading particular phrases in isolation, and it must not presume improper interference with employee rights." Id. Thus, the Board held that, "if the rule does not explicitly restrict activity protected by Section 7, the violation is dependent upon a showing of one of the following: (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." Id . at 647. Applying this standard in Lutheran , the Board upheld a rule prohibiting "abusive or profane language" because employees would not "read a general prohibition on abusive or profane language as a ban on Section 7 activities." Id. at 648.
Applying Lutheran to Sears's social media policy, the Division of Advice declined to issue a complaint, concluding that, while the prohibition against disparagement "could chill the exercise of Section 7 rights if read in isolation, the Policy as a whole provides sufficient context to preclude a reasonable employee from construing the rule as a limit on Section 7 conduct." NLRB Gen. Couns. Advice Mem., Sears , at 6. The Division of Advice found determinative the rule's appearance "in a list of plainly egregious conduct, such as employee conversations involving the Employer's proprietary information, explicit sexual references, disparagement of race or religion, obscenity or profanity, and references to illegal drugs" and the policy's preamble, which explained "that it was designed to protect the Employer and its employees rather than to 'restrict the flow of useful and appropriate information.'" Id .
More recently, in April 2011, the Division of Advice issued another Memorandum on social media, opining that the Arizona Daily Star did not violate the NLRA when it terminated a reporter for posting inappropriate tweets to a work-related Twitter account. See NLRB Gen. Couns. Advice Mem., Lee Enters., Inc., d/b/a Ariz. Daily Star , 28-CA-23267 (Apr. 21, 2011). The case did not turn on a written social media policy, since the employer had not implemented one, but rather on the fact that the employee's tweets - which involved offensive comments on local murders - were not "protected and concerted" and "did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment." Id . at 7-8. The Division of Advice nonetheless cautioned that some of the employer's statements could be interpreted to prohibit protected activities, including statements "to stop airing  grievances or commenting about the Employer in any public forum," not "to tweet about anything work related," and to "refrain from using derogatory comments in any social media forums that may damage the goodwill of the company." Id . at 8.
The Two New Complaints
While none of these cases provided the General Counsel with a viable platform for challenging social media policies or employee discipline for using social media, the General Counsel has now seized on the disciplinary actions that two employers recently took against employees after Facebook postings.
In the first case, Hispanics United, a New York nonprofit, fired five employees who criticized a co-worker and working conditions on Facebook, claiming that the employees had improperly harassed a co-worker. The Board issued a complaint on the theory that a Facebook discussion among co-workers, addressing working conditions like performance and staffing, amounts to protected concerted activity under Section 7 of the NLRA, and that disciplining employees for engaging in that activity violates the Act. The Board announced that, absent a settlement, a hearing will proceed on June 22, 2011.
In the second case, Knauz BMW, a Chicago car dealership, fired an employee who expressed concerns on Facebook about the food and beverages that the employer provided at a sales event. The Board issued a complaint on the theory that the comments on Facebook were protected concerted activities and that the employer fired the employee to chill and discourage other employees from engaging in similar activities. A hearing is set for July 21, 2011.
While neither of these cases appears to involve a written social media policy, the complaints show, at a minimum, that the General Counsel considers discussions of workplace matters on social media to be protected concerted activity that an employer cannot lawfully chill or prohibit under the NLRA, even if the discussions are highly negative of the employer or co-workers.
The Next Case?
While these disciplinary cases are underway, the General Counsel will undoubtedly continue to look for other cases to address the standards governing social media policies, in particular those prohibiting disparagement and abusive language on social media. If the case arises, the General Counsel is likely to advocate taking the dissent's approach in Lutheran, where current Chairman Wilma Liebman (joined by former Member Walsh) concluded that a rule prohibiting "abusive or profane language" was "facially unlawful" because it could reasonably be construed to prohibit Section 7 activity. 343 N.L.R.B. at 649. Finding the rule in Lutheran to be highly subjective, ambiguous and overbroad ( id. at 650), the dissenters concluded that "employees might reasonably be uncertain whether vehemently condemning a supervisor's perceived unfair treatment of a co-worker would be 'abusive' in the unexplained sense of the rules," and "[s]uch uncertainty discourages employees from the kind of activity that is protected by Section 7." Id. at 650-51.
That position, if adopted in the area of social media, could make it harder for employers to restrict the wide dissemination of potentially offensive and abusive comments about them and their employees in cyberspace.
The General Counsel's complaints against Knauz BMW, Hispanics United and AMR - as well as the threatened complaints against build.com and Reuters - should prompt employers to revisit their social media policies and, if they do not have one, to prepare supervisors to handle properly employees' use of social media consistent with the NLRA. Employers can expect close scrutiny of their policies whenever they announce them to employees or seek to enforce them. For that reason, they need to consider with counsel a host of questions as they design and apply their social media policies, including:
• whether the policy explicitly or implicitly restricts protected concerted activities;
• whether the policy contains an effective disclaimer of interference with Section 7 rights;
• whether the policy states and serves a legitimate purpose in protecting employees and the employer in the use of social media;
• whether the policy (or disciplinary action) can be interpreted to "chill" employees' exercise of Section 7 rights and, in that regard, does the policy include restrictions on "derogatory" or "negative" statements about the employer and its supervisors;
• whether restrictions on "abusive," "derogatory" and other inappropriate comments are ambiguous or overbroad in the context of the policy's overall purpose and other prohibitions; and
• whether the policy was adopted in the context of legitimate business needs, independent of any union activities, and enforced in a non-discriminatory manner.
Navigating this developing legal landscape to draft and enforce lawful social media policies may prove challenging, as employers seek to balance legitimate business needs with new electronic means of communication. It is important for employers to have counsel review their social media policies for compliance with the NLRA and to consult counsel before disciplining employees for communicating about their workplace on social media. In the meantime, employers would be wise to develop a thicker skin when it comes to negative comments about them on social media - a lesson that the Knauz BMW and Hispanics United cases may well drive home.
Patricia A. Dunn is Of Counsel and Kye Pawlenko is an Associate in the Washington office of global law firm Jones Day. Both are in the Labor & Employment Practice with particular experience in matters before the National Labor Relations Board.