July 20, 2018

With the advent of social media, many employers have sought to limit the right of employees to complain about work and their jobs online, fearful that negative Facebook posts or tweets on Twitter will go “viral” and tarnish the Company’s valuable reputation.

Most of these policies are illegal under the NLRB’s “protected concerted activity” doctrine.

Section 7 of the National Labor Relations Act states: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, 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.” 29 U.S.C. § 157.

The “other mutual aid or protection” provision of Section 7 has resulted in the doctrine of “protected concerted activity.” In Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 563- 70 (1978), the Supreme Court found that employee conduct is “protected” under the Act if it is intended to improve terms and conditions of employment, even when employees “seek . . . channels outside the immediate employee-employer relationship.” An activity is clearly “concerted” if it involves two or more employees. However, even a single employee can engage in concerted activity if the employee acts “with or on the authority of other employees and not solely by and on behalf of the employee himself” or an “individual employee seek[s] to initiate or to induce or to prepare for group action.”

Myers Industries, 268 NLRB 493, 497 (1984) (“Myers I”); Myers Industries, 281 NLRB 882 (1986) (“Myers II”). Concerns expressed by an individual are also protected when they are “logical outgrowths of the concerns expressed by [a] group.” Salisbury Hotel, 283 NLRB 686-87 (1987).

Not all employee conduct, however, is protected by the Act. For example, individual gripes, as well as conduct that is unlawful, violent, or that breaches a contract is unprotected by Section 7. See e.g., Southern S.S. Co. v. NLRB, 316 U.S. 31 (1942); NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939); NLRB v. Sands Mfg. Co., 306 U.S. 332 (1939).

Tougher questions arise when the conduct could be also be viewed as false, disparaging, extreme, or disloyal. In those circumstances, the Labor Board and courts have adopted two tests -- Jefferson Standard and Atlantic Steel. NLRB v. IBEW, Local No. 1229, 346 U.S. 464 (1953) (Jefferson Standard); Atlantic Steel, 245 NLRB 814, 816- 17 (1979). Jefferson Standard is applied when employee communications are intended to appeal directly to third parties. In that instance, the Labor Board will examine whether the communication references a labor dispute and/or whether it is so disparaging of the product or employer as to lose protection of the Act. Atlantic Steel is applied when the communication in question is between an employee and supervisor, and specifically focuses on whether the communication was disruptive or undermines shop discipline. In making that determination, the Labor Board looks at several factors, including the (1) place of the discussion, (2) the subject matter of the discussion, (3) the nature of the outburst, and (4) whether the outburst was provoked by the employer’s unfair labor practices. Under both tests employee conduct usually must be extreme or outrageous to be declared “unprotected.”

While the right of employees to engage in protected concerted activity is wellsettled law, the reach of this doctrine in the age of social media has raised important legal and business considerations. For example, employees gathering around the “water cooler” to complain about terms and conditions of employment rarely have any impact outside of a specific office. In contrast, these same employees taking to Facebook or Twitter to complain about their employer can have a much greater impact. What was previously limited to the workplace property can now go “viral” in a matter of minutes. Even if the employee complaints are unfounded or inaccurate, an employer can have its valuable image and reputation tarnished by such posts. Balanced against that employer interest is the basic right of employees to engage in protected concerted activity as described above. After all, do employees lose the protections afforded by Section 7 because of technological changes?

The NLRB and its General Counsel have weighed in on this topic and answered with a resounding “NO!” Since August 2011, the General Counsel has released three reports analyzing protected concerted activity in the social media context. In these reports, as well as recent speeches and public pronouncements, the General Counsel has made clear that the “protected concerted activity” doctrine broadly applies in social media, and that pursuing cases against employers who violate this right is a priority for the NLRB. In showing just how important this topic is, in the initial charges that came before the Labor Board, the General Counsel personally reviewed all of the charges, so as to develop a consistent approach to how such cases would be adjudicated.

The bottom line is that an employer’s social media policy cannot prevent employees from complaining about terms and conditions of employment online. The NLRB’s General Counsel has released a sample social media policy from Wal-Mart that it found lawful. We have reproduced this policy below. Here, again, while the specific wording between this policy and other policies the NLRB has deemed unlawful seem slight, the most risk adverse approach is to use the language from this policy as much as possible.