Social media continues to play an important role in all aspects of a company’s internal and public communications (see this Doug’s Note).  Companies are utilizing social media to make SEC disclosures, coordinate targeted advertising and marketing campaigns and locate potential employees.  Employees, on the other hand, are using social media to network, seek new jobs and communicate with the people around them. This article discusses two recent National Labor Relations Board (NLRB) cases that provide guidance in determining the extent to which employee speech on social media is protected under the National Labor Relations Act (NLRA).

Employees may file certain employment-related charges against their employer with the NLRB, which administers and enforces the NLRA.  The NLRB then investigates whether the charge has any merit.  Oftentimes, the employee and employer settle the dispute during the NLRB’s investigation.  For those charges that are not settled, the NLRB typically conducts a hearing in front of an Administrative Law Judge (ALJ).  Decisions by an ALJ are subject to the NLRB’s Board review, and Board decisions may be appealed to a federal appellate court.

Three D, LLC d/b/a Triple Play Sports Bar and Grille

In August 2014, the NLRB found that an employer unlawfully discharged two employees who participated in a Facebook discussion criticizing the employer’s handling of state withholding taxes.  See Three D, LLC d/b/a Triple Play Sports Bar and Grille.  The Facebook discussion was ignited by a former employee’s post about owing taxes due to an error in the employer’s calculation of withholding taxes. Two current employees participated in the discussion.  One employee “liked” the former employee’s initial post and the other stated that she also owed taxes and called the employer an “asshole.”  When the employer learned of the discussion, he terminated both employees.

Richmond District Neighborhood Center

In October 2014, the NLRB came out the other way in the Richmond District Neighborhood Center case.  The case involved Facebook chatter among a group of counselors at a teen center regarding their intent to engage in a pattern of insubordination at work such as refusing to obtain permission before organizing youth activities and undermining leadership.  The employees made crude and profane statements about their intent to ignore management instructions and act as they pleased (an excerpt of the conversation is below).

MOORE: U gOin baCk or nO??

CALLAGHAN: I’ll be back, but only if you and I are going to be ordering sh_t, having crazy events at the Beacon all the time. I don’t want to ask permission, I just want it to be LIVE. You down?

MOORE: Im gOin to be a activity leader im not doin the t.c4 let them figure it out and when they start loosn kids i aint helpn HAHA

CALLAGHAN: You right. They dont appreciate sh_t. Thats why this year all I wanna do is sh_t on my own. have parties all year and not get the office people involved. just do it and pretend they are not there . . .

. . .

CALLAGHAN:  hahaha! F__k em. field trips all the time to wherever the f__k we want!

When the employer learned of the discussion, it withdrew offers to the counselors for the upcoming school year.  The NLRB found the employees’ comments encouraged insubordination and that the conversation was outside of the scope of protected conduct under the NLRA:

“We find the pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection and render [the employees] unfit for further service.”

How a Social Media Policy May Help

Generally, a social media policy covers the use of social media and electronic technologies, confidentiality, privacy, protection of employer information, intellectual property and contact with the media and government agencies.  The policy must be carefully drafted in a way so that it does not unlawfully restrict employees from exercising their rights under Section 7 of the NLRA and protects the employer against the risks and liabilities associated with employees’ use of social media.

For example, instead of prohibiting “inappropriate discussions” like the overly broad policy in the Three D case, the  restrictions should be limited to something like “inappropriate discussions that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”

Additionally, instead of requiring employees to be “respectful, fair and courteous” in posting comments, the policy should provide a list of specific examples of prohibited conduct so that it would not be reasonably construed to prohibit Section 7 conduct.  For instance, the list of prohibited conduct may include “offensive posts meant to intentionally harm someone’s reputation.”

Social media continues to evolve and permeate every aspect of today’s society.  As the law develops around this new technology, it is important that companies stay abreast of the changes and adapt accordingly. Revising your company’s social media policy may be one more thing to add to your list in 2015.