NLRB Aims to Protect Social Media Communications

November 22, 2010

The National Labor Relations Board recently charged an employer with violating federal labor law when it fired a worker because she published comments critical of the employer on a social media website. American Medical Response, No. 34-CA-12576 [http://www. laborrelationstoday.com/uploads/file/CPT_34-CA-12576_AMR_10- 27-10.pdf]. Pundits have reported this development as “groundbreaking.” (New York Times, Nov. 8, 2010). However, the case represents nothing more than application by the NLRB of long-standing rulings which balance the expansive protected right of employees to express criticism of their employer and the workplace for their “mutual aid and protection,” against the far more circumscribed right of the employer to discipline workers for such conduct. While it is correct that few NLRB prosecutions to date have concerned social media communications, that is due to the rise of those media, not a change in course by the NLRB. Still, the development of the technology of communications and the interaction of the 1938 National Labor Relations Act have caught some employers unaware. Moreover, while the American Medical Response case does not present the issue, application of these NLRB rules is not limited to employers whose workers are represented by a labor organization. It is important for Dickinson Wright clients to understand the rules and obligations of the employer when dealing with employee communications whether around the water-cooler, or posted on the internet.

The Complaint Case

The American Medical Response corporation maintains a work rule prohibiting its employees from “posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way.” Another rule prohibits employees “from making disparaging … comments when discussing the Company or [supervisors or] co-workers.” A worker posted Facebook comments ridiculing and using vulgarities to mock a company supervisor, and used workplace lingo to refer to him as a psychiatric patient. The worker was discharged for violating the company work rules.

The NLRB issued its Complaint alleging that the discharge violated federal law because the criticisms were protected, collective activity. Of note, the Complaint also claims that merely by maintaining the quoted rules, American Medical Response interfered with and coerced the discharged worker, and other employees, in the exercise of their statutorily-protected right to communicate freely regarding working conditions and related topics. Issuance of the Complaint is not a final finding against the company, but established law suggests that the employer, in the end, may lose the case.

The Balance -- Protected Collective Activity vs. The Right to Manage the Enterprise

Employment law expresses a fundamental societal balance between individual and collective interests of workers and property interests of business. The conflict between those competing concerns is stark where a founding national principle - freedom of expression - is sought to be curtailed for the sake of industry. This understanding informs our consideration of NLRB precedent.

An employee communication is “concerted protected activity” when engaged in with the object of initiating or inducing group interest or action “for the purpose of mutual aid or protection” on a matter that concerns working conditions or related subjects of interest to employees. See Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). So for example, employee blogging, even if strongly negative to the employer or critical in tone, meets the requisite test if the objective is communication with other employees for the purpose of seeking workplace improvements.

Due to the overarching societal deference to freedom of communication embodied in federal labor law, “concerted activity” communication, with very limited exceptions, is protected regardless of unreasonableness or impropriety. Rather, strong or offensive language is typically tolerated. An employee who characterized his superiors as “a-holes” was determined to have engaged in protected activity in one pre-social media NLRB decision. Similarly, a letter describing management as “hypocritical,” “despotic,” and “tyrannical” was protected speech. NLRB and court decisions too numerous to count use the descriptive phrase, “animal exuberance” to describe negatively workplace outbreaks - and then protect the right of the speaker to have engaged in them. The media adopted for employee expression of thought, whether physical or virtual, does not alter the analysis of the NLRB or the risk to the employer who acts without due consideration.

However, employee protections are not unlimited. At the threshold, “mere talk” which does not involve or seek to initiate collective action does not come within the reach of federal labor law. Communications which are only inconsequentially related to matters of common employee concern may be too attenuated to be protected by the statutory “mutual aid or protection” clause. Mere personal “griping” about working conditions does not merit or receive the protection. Extremely harsh employee criticisms of the employer or co-workers
which exceed the permissive standard applied in the labor relations arena, statements showing overly hostile and disruptive behavior towards coworkers, and postings that are excessively disloyal to the employer, may be unprotected as “unlawful or otherwise improper” communications.

And, as some employers have learned the hard way, rules protecting employee communications - whether placed in social media or otherwise - apply equally to all employers subject to federal labor law, whether or not their workers are unionized.

Key Recommendations To Avoid Trouble

First, don’t think or assume that because an employee communication was made or received outside of the workplace, did not involve the employer’s instrumentalities such as its computer or email, and was insubordinate, discipline may permissibly be imposed. Those factors all are present in American Medical Response.

Second, don’t be under the misimpression that these principles only apply to unionized employers. Union and non-union workers are protected by the same federal rules protecting “mutual aid” expression and prohibiting employer policies that impinge upon those communications.

Third, don’t incorrectly conclude that a communication by an individual worker cannot be “collective activity,” as recipients of such communication are deemed to be participants, whether or not they respond in kind or otherwise.

Finally, do be proactive. Have your Dickinson Wright labor lawyer vet your work rules and policies. A recommended further step is to develop and adopt a sound “social media” policy tailored to the particular needs and practices of your business.

David J. Houston handles labor and commercial litigation
and related matters, and has represented employers in
multiple disputes before the NLRB and other tribunals
involving social media issues. He can be reached in
Lansing at 517.487.4777, in Grand Rapids at 616.336.1018
or at dhouston@dickinsonwright.com.

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