The National Labor Relations Board, the primary government agency entrusted with the responsibility to “control and oversee” labor management relationships, is undergoing a 21st century makeover. With the substantial decrease in private sector unionization (set, by some surveys, at less than 7% of the nation’s private sector workforce), the NLRB has seen fit to extend its regulatory authority to protect and promote the Section 7 rights of individuals arising under the Act into the social media venue.

Section 7 of the National Labor Relations Act gives to the employees the right to form, join, or assist labor organizations; and also guarantees employees the right to engage in “other concerted activities” for the purposes of collective bargaining or other mutual aid or protection. Even in the absence of a collective bargaining relationship and/or union-employer context, an individual employee who is complaining about “wages, hours or other terms and working conditions” on behalf of himself and other similarly situated employees cannot be disciplined or discharged for this type of conduct under Section 7 of the National Labor Relations Act. Over the last few years, there have been a number of cases dealing with social media (i.e. Facebook, etc.) where the Board has concluded that employee discipline outside the context of a collective bargaining agreement violates Section 7.

Inquiries by an employee asking co-workers on the individual’s Facebook page for their reaction to another employee’s complaints about work quality and staffing levels has been protected by NLRB action. A complaint by employees, posted on Facebook, about an employer’s failure to withhold sufficient amounts of money to pay state income taxes, which resulted in employees receiving a demand for additional tax payments when filing their returns, was protected. In the latter part of January, 2012, the Board, while conducting an examination of employers’ social media policies, underscored two (2) major points dealing with social media:

• An employer’s policy should not be so sweeping and overbroad that it prevents employees from discussions of wages, working conditions, and terms of employment.
• An individual employee’s comments are not protected if they are “mere gripes” not made in relationship to activities involving other employees (i.e. concerted activities).

What guidance, if any, does an employer have with regard to “employee social media issues”?

Based on a review of cases, the following seems to be true:

• The most bright line distinction in all of the cases is that the legality of disciplining an employee for social network conduct will hinge on the individual facts of each case.
• An employee’s use of profanity with regard to company matters or personnel is not axiomatic proof exposing the individual to discipline. Profanity-based postings may find protection under the National Labor Relations Act especially when those postings have occurred outside the workplace and during non-work time. While every employer will take umbrage at such type of behavior, management must be aware that if they choose to discipline an individual for outside-the-workplace and non-work-time postings because of profanity, they may be creating a situation of future NLRB action.
• The Board will, more than likely, protect all communications that have some reference and basis in workplace terms and conditions of employment or pay due to the fact that it will affect more than one employee even if the post shows a certain level of disrespect to company management.
• Is the posting dealing with some regulated behavior which exposes an employer to potential legal liability? If the individual, in their social media posting, is complaining about workplace discrimination or harassment which can and will expose an employer to potential legal liability, this probably will not be protected. An employee has an obligation (?) to report wrongdoing to the employer and exposing “these wrongs” publicly and not reporting them to the employer will not be protected.
• In almost all of the cases, the Board has focused on the “when and where” of the social media posting. If the social media posting occurred while on company time and using company equipment, the greater the chance that the NLRB will find in the employer’s favor. This, in and of itself, is somewhat confusing. The “when and where” of the activity should not control, but a number of cases, the NLRB spends a great deal of time analyzing the “when and where” (i.e. more discipline leeway if on company equipment and time).

No one knows where the NLRB’s involvement in social media will finally go. As stated above, each individual case will expand or contract this net. Everyone knows that in the use of social media, less and less common sense is being used. Once the send button is hit, it cannot be taken back and more often than before, that “send” can cause employer/employee conflict.

Questions? Contact Walter J. Liszka in the Chicago office at waliszka@wesselssherman.com or by phone at (312) 629-9300.