With 66 percent of employers reported to be monitoring their employees' online activity, collisions between businesses and employees who use social media websites to comment on their working conditions have become all the more common. In several cases, posts on Facebook have cost workers their jobs.
According to legal experts, the National Labor Relations Board may now have taken an important step toward balancing the rights of employers to protect their reputations and the online speech rights of employees.
Section 7 of the National Labor Relations Act bars employers from interfering with an employee's right "to engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection." Courts have traditionally used two legal standards that date back before the Internet to determine whether employee speech, even if it is "concerted," falls outside the protection of Section 7.
One standard known as "Jefferson" analyzes employee communications to third parties; the other, "Atlantic Steel," focuses on whether communications between employees and supervisors are disruptive to workplace discipline.
But in a recent NLRB report, the board's acting general counsel said that neither standard precisely addressed the case of a worker at an undisclosed popcorn packaging facility who was fired for criticizing a supervisor in a Facebook posting.
In ruling that the posting was protected under Section 7, the board applied a "hybrid" test combining elements of both standards. Among other things, the general counsel noted, "The discussion [between the worker and other employees] occurred at home during non-work hours, and thus was not so disruptive of workplace discipline as to weigh in favor of losing protection under a traditional Atlantic Steel analysis."
Doreen Davis, a partner at the law firm of Morgan, Lewis & Bockius in Philadelphia, says the NLRB "has given employees' conversations on social media much more leeway than conversations at a water cooler. ... It's a really important change in the way the general counsel is going to view this type" of social media post.
"The board has recognized that there is a qualitative difference between a water-cooler discussion and a social media post," agrees employment law practitioner Phillip Schreiber of Holland & Knight in Chicago.
The growing popularity of social media, with its uniquely public nature, has presented employers with a unique challenge. As Davis says, "Employers don't like to see postings on social media where tens of thousands of people read about what is wrong about the employer."
In a celebrated case, the NLRB in 2010 filed a complaint against an ambulance company that fired an employee, Dawnmarie Souza, for posting negative comments about her boss. American Medical Response of Connecticut settled the case before it reached a hearing.
Now in the new report, the board's legal chief summarizes how it analyzed 14 unfair labor practice charges involving employers' social media policies and the discipline issued to employees under those policies. In seven of those cases, the NLRB's lawyers found that policies complied with the NLRA while five did not.
The cases were referred to the agency's Division of Advice by regional offices. When an NLRB investigation finds sufficient evidence to support a charge, it may issue a complaint against the employer if the case is not settled.
The case of the anonymous popcorn worker has attracted the most interest by employment lawyers. According to one legal analysis, it "highlight[s] what is likely to become the NLRB's new test for deciding whether the action for which an employee was disciplined was so out of line that it lost the protection of the NLRA."
The report says the worker took part in a Facebook conversation with co-workers on Feb. 23, 2011, during which she said she hated working at the plant and it was the operations manager "who made it so bad." She was fired on March 2.
NLRB lawyers found that the worker's conduct "was part of employees' concerted activity for mutual aid and protection." As for whether the posting should lose the protection of Section 7, they applied "a modified Atlantic Steel analysis that considers not only disruption to workplace discipline, but that also borrows from Jefferson Standard to analyze the alleged disparagement of the employer's products and services."
"While the charging party's comments about the employer's operations manager were certainly critical, it is clear under board law that they were not defamatory or otherwise so disparaging as to lose protection of the Act," the lawyers concluded.
Davis says the new test is a particular boon to employees since it "will be very difficult for employers to say that anything in a Facebook post was disruptive of the workplace." It definitely could help workers in wrongful discharge cases, she adds.
But, Schreiber cautions, "It's still difficult for employers to know where the line is in developing social media policies and knowing how to enforce these policies." The NLRB, he says, has begun to develop "a body of law and standards by which to analyze these cases" but the law is "still not clearly defined."
For now, Schreiber recommends that employers "keep their social media policy as narrowly tailored as you can. They should avoid broad, sweeping prohibitions." Generalities, he adds, "are going to get you in trouble."
Matthew Heller is a freelance writer and editor based in Los Angeles. To comment, email firstname.lastname@example.org.