Implementing and enforcing social media policies has been a top priority for many employers within recent years, and with good reason. It is now crucial that employers take a careful look at their own social media policies. The National Labor Relations Board (NLRB) has issued opinion memoranda which equate “comments” and “likes” on Facebook and other social media pages with the concerted activity protected by the National Labor Relations Act [the Act].
It is important for all employers to recognize that the Act and the NLRB’s decisions apply to them and not solely to those with a unionized workforce. This may come as a surprise to many employers, especially those who have no experience with unionization and related issues.
Specifically, the NLRB considered various factual scenarios in an apparent effort to explain whether social media policies prohibiting employees from posting disparaging comments regarding the employer, its managers or supervisors, violate the Act. In some circumstances, the NLRB found that the comments were protected and that discipline or retaliation against the employee was improper, whereas, in others they found posts and comments to be unprotected and for it to be lawful to discipline the employee in question.
In one example provided by the NLRB, a truck driver was traveling to Wyoming from his native Kansas. When he reached Wyoming he was unable to proceed due to closed roads and for a period of time, he was unable to reach anyone at his employer’s place of business. This employee commented on his Facebook page that his company was running off all of the good and hardworking drivers. No employees joined this conversation, however, the Operations Manager of the truck driver’s employer commented and the employee and the Operations Manager engaged in a discourse on Facebook. The Operations Manager threatened the truck driver to remove the comment and the driver was demoted. Here, the NLRB determined that the comment by the truck driver was “just venting” and was not protected by the Act. Therefore, the discipline was not forbidden.
Quite the opposite, another example provided a situation where an employee of a veterinary hospital posted a comment reflecting her frustration with the promotion of another employee. Three friends/co-workers of the employee commented and a discussion ensued regarding the employee who was promoted, the general mismanagement of their employer, and some specific issues they had with the employer. The employer terminated the employee, one commenter and disciplined the other two. The NLRB determined that the employees were engaged in protected activity and that this discipline constituted unlawful retaliation under the Act.
Additional examples were provided by the NLRB, highlighting the significance of each particular fact of a given situation. If your business is confronted with an employee making disparaging remarks, you should seek counsel with an experienced attorney before taking action against the employee. Further, you should review your business’s own social media policy to ensure that it complies with the Act. Cooper Levenson maintains an Employment Law practice group available to you for such questions and assistance.
