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On August 18, 2011, NLRB Acting General Counsel Lafe Solomon released Memorandum OM 11-74, which reviewed recent case developments concerning the use of social media. With workers increasingly relying on social media to organize or raise concerns about working conditions, and employers increasingly relying on restrictive workplace social media policies in response, the Office of the General Counsel sought to provide guidance concerning use of these popular media, including Facebook, Youtube, and Twitter.
A review of 14 social media cases investigated by the Office of General Counsel that were submitted by NLRB regional offices to the NLRB’s Division of Advice for guidance, the report covered several issues relevant to the modern workplace. The cases under consideration included an examination of whether employee Facebook and Twitter postings were protected concerted activity, whether Facebook or Youtube videos of interviews with non-union workers could be unlawful and coercive, and whether various employer social media policies were lawful.
Nine of the 14 cases referenced in the report concerned Facebook or Twitter posts by employees, considering whether such postings were considered protected or concerted activity. In four of those cases, the NLRB’s Division of Advice concluded that employees engaged in protected concerted activity. In five, the Division found that the communication was not protected. In examining these cases, the Division applied its traditional, non-social media precedents. Whether a communication is protected depends not on whether it is communicated via Facebook versus via leaflet, but whether the employee acted in concert with or on behalf of other employees versus whether she acted only on her own behalf. The former is protected, the latter not.
In one case, the Division concluded four employees engaged in protected concerted activity where they posted on Facebook to defend a co-worker eventually terminated for “poor performance.” Even though the Facebook posting included profanity, the Division noted that this feedback, which was in response to a request from the co-worker prior to her termination meeting with management, “directly implicated terms and conditions of employment” and was “textbook” protected concerted activity. Similarly, in another case, the Division found protected concerted activity where several restaurant employees complained about their employer’s withholding policies on Facebook and pledged to raise the issue at an upcoming meeting with management.
In contrast, the Division found no concerted activity where employees of another restaurant complained about their employer’s tipping policy on Facebook but never raised the issue with management. In other cases, the Division held that personal criticism of managers, on either Facebook or Twitter, were not protected where such comments expressed frustration but did not seek to engage co-workers in discussion or future meetings to address the concerns.
Several cases held employer social media policies invalid for various reasons, including but not limited to, categorical bans on depicting the employer in any media without advance permission or bans on “inappropriate” postings that employees “would not want their manager or supervisor to see.” The Division reasoned that these sweeping prohibitions threatened protected rights under Section 7 of the National Labor Relations Act, including criticism of employer policies or working conditions. The Division, however, upheld an employer media relations and public affairs policy that limiting employee contacts with the press, concluding that the rule was intended to prohibit employees from speaking to reporters on their own behalf, rather than to engage in protected concerted activity.
Finally, the report also addressed union coercion in a case in which union organizers visited a non-union jobsite and questioned the employees about their immigration status. The Division concluded that the videos, which were posted to Facebook and Youtube, were unlawful coercive conduct in violation of Section 8(b)(1)(A) of the NLRA.