The NLRB and social media: does the NLRB 'like' employee interests?

• Author: Hemenway, Alexandra

1. INTRODUCTION II. BACKGROUND A. The Definition and Scope of Section 7 Rights: What Is "Concerted Activity?" B. What Is Not Section 7 "Concerted Activity": How an Employee Can Lose Section 7 Protections C. How the Board Defines "Concerted Activity" Within the Social Media Context 1. How the Board Defines "Concerted Activity" Within the Context of Employers' Social Media Policies a. The Board's Decision in Sears Holdings (Roebucks) b. The Board's Decision in American Medical Response of Connecticut 2. How the Board Defines "Concerted Activity" Within the Context of Employers' Disciplinary Action Against Employees Due to the Content of Social Media Posts a. Wal-Mart: "Mere Griping" Is Not Protected Activity b. AMR Revisited: The Famous "Facebook Firing Case" c. Karl Knauz Motors III. ANALYSIS A. Is the Board Examining Employers' Social Media Policies in a Consistent Manner? 1. Does the Board Require a "Reasonable Reading" of an Employer's Rule? 2. Does the Board Require "Limiting Language" in Employers' Social Media Policies? B. Has the Board Properly Guided Corporate Employers About When They May Rightfully Terminate Employees Because of a Social Media Post? 1. The Ambiguity of the "Group Action" Requirement 2. What Is a True "Individual Gripe?" IV. RECOMMENDATION A. The Requirement of Guidance: Social Media Policies Should Be Clear B. If Employees Engage in Conversation Employers Should Proceed with Caution 1. Requiring an Ongoing Trademark Claims Service 2. Expanding the Instances When Trademark Holders Would Be Notified of Infringement V. CONCLUSION I. INTRODUCTION

   Social media's growing impact on corporate society is staggering. (1) Indeed Facebook is estimated to have one billion active users, (2) and Twitter is estimated to have 175 million registered users. (3) This increase in social media's popularity has created new challenges for traditional labor law. (4) In fact, the National Labor Relations Board (the Board or NLRB) has recently met the social media issue head-on in its decision involving the famous "Facebook firing" cases. (5) Indeed, over the last few years the Board has considered over 129 cases involving social media. (6) In the majority of these cases the Board primarily focuses upon two issues: (1) whether an employer has an overbroad social media policy that unlawfully restricts an employee's use of social media, and (2) whether an employer has unlawfully terminated an employee for the content of the employee's social media post. (7) In many of these cases the Board has found that a employer's social media policy or that the termination of an employee was unlawful because the employer's action violated the employee's section 7 rights under the National Labor Relations Act (NLRA), 29 U.S.C. [section][section] 157, 158 (1947). (8) This Note suggests that the Board's stance of protecting employees' section 7 rights in the social media cases is inconsistent with prior precedent and sends conflicting signals to employers. (9)

2. BACKGROUND

   The NLRB is a federal administrative agency that prohibits employers from "interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment, or from refraining from any such activity." (10) The NLRA protects employees who fit within the statutory definition of employee as defined in section 2(3) of the NLRA. (11) Thus, the NLRA covers employees in both the public and private sectors. (12) The Board, as an independent federal agency, acts on behalf of employees and protects employee rights under the NLRA. (13) The Board protects employees' right to organize and also has the power to "prevent and remedy unfair labor practices committed by private sector employers and labor unions." (14) The following Part of this Note first outlines an employee's rights under section 7 of the NLRA. The Note next provides the details surrounding some of the well-known social media cases that the Board has recently addressed.

   1. The Definition and Scope of Section 7 Rights: What Is "Concerted Activity?"

      In many of the recent social media cases the Board has found that an employer's social media policy, or an employer's disciplinary action against an employee due to the content of the employee's social media post, runs afoul of an employee's rights under the NLRA. (15) Section 7 of the NLRA protects an employee's right to engage in "concerted activity." The relevant statutory language states: "Employees shall have the right to self-organization, to form, join or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." (16) According to the Board, an employee's activity is concerted when the employee acts with or on behalf of fellow employees and does not act solely for herself. (17) An employee's actions may demonstrate concerted activity in a number of different contexts.

      For example, the Board has stated that the NLRA protects employee statements regarding staffing levels when the context of the statement suggests that the employee was concerned with working conditions. (18) The Board has also stated that statements among employees regarding their compensation is protected concerted activity within the meaning of section 7 and, further, that any policy limiting an employee's ability to discuss her compensation violates her section 7 rights. (19) Growing out of that precedent, the Board has further held that any employer action that is designed to discipline employees based on website statements regarding their terms or conditions of employment violates the employees' section 7 rights. (20) Moreover, the Board has held that criticism or objection to supervisory actions is also protected activity under section 7. (21) In sum, the Board has found that section 7 "concerted"--and therefore protected--activity exists when an employee: (1) acts on behalf of other employees and expresses a sentiment of a group; (2) when the statements implicate terms of employment, working conditions, or compensation; and (3) when the statements concern criticism of a supervisor. (22)

   2. What Is Not Section 7 "Concerted Activity": How an Employee Can Lose Section 7 Protections

      The Board, however, has not found that employee posts in every social media case are indicative of a protected right to concerted activity under section 7. (23) In some of the social media cases, the Board found that the content of the employee's social media posts did not implicate section 7 rights because the employee did not seek to involve other employees, or because the employee did not refer to terms or conditions of employment. (24)

      The Board has declined to find social media posts to be concerted activity in other contexts as well. For example, mere "gripes" about an employer's business activity and expressions of general frustration regarding an individual dispute with an employer are not "concerted" within the meaning of section 7. (25) In what is known as the Jefferson standard, the questions become whether an employee's statement is related to a current labor dispute, and whether the statement is so "disloyal, reckless, or maliciously untrue as to lose the Act's protection." (26)

      Additionally, the Board has declined to find employee statements to fall within the category of concerted section 7 activity when it meets the Atlantic Steel standard. (27) The Atlantic Steel standard is generally implicated when an employee makes a statement at work, where the statement implicates a physical or verbal threat, and where the statement is so "opprobrious" that it loses section 7 protection. (28) Within the context of section 7 activity, therefore, the Board will act to ensure that employees are able to exercise their section 7 rights. However, the Board applies some necessary limits to the concept of concerted activity.

   3. How the Board Defines "Concerted Activity" Within the Social Media Context

      The Board has recently applied the concerted activity standards to the social media cases. (29) The social media cases that have come before the Board generally implicate one of two issues: (1) the scope of an employer's social media policy, and (2) an employer's disciplinary action or termination of an employee based on an employee's social media post. (30) In both of these contexts, the Board has questioned whether the social media policy or the social media post implicated section 7 rights. (31) Parts II.C.1-2 outline the cases in which the Board has found that an employer's social media policy violates section 7 and the cases in which the Board determined that an employee's social media post was protected activity under section 7.

      1. How the Board Defines "Concerted Activity" Within the Context of Employers' Social Media Policies

         The Board has determined, both in filing complaints and in issuing advice memoranda, that many employers' social media policies are unlawful under the NLRA. (32) The first inquiry in these social media policy cases is whether the employer in fact adopted a rule or policy. (33) After the Board establishes that an employer had a social media policy in place, written or otherwise, the Board next examines whether the employer's policy violates section 8(a)(1) of the NLRA. (34) Section 8(a)(1) states: "It shall be an unfair labor practice for an employer--(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." (35) The Board has held that an employer violates an employee's section 7 rights when the employer creates a rule or policy that would "reasonably tend to chill employees in the exercise of their section 7 rights." (36) In assessing this question, the Board engages in a two-step analysis...