Publications: The battle over social media and the workplace

During the Dark Ages, before Facebook and Linkedin, Twitter and blogging, it was challenging enough for employers to manage the at-work behavior of their employees. But with the advent and subsequent explosion of social media, the task of keeping employees on task, or even on board with the employer's mission, has become exponentially more difficult.

Sophisticated employers have attempted to manage the risks posed by possible employee misuse of social media with policies. Policies that prohibit the posting of confidential employer information. Policies that extend existing employer anti-harassment codes into cyberspace. Policies that discourage employees from discussing the company, its executives, employees, pay practices and the like on social networking sites. However, these policies and their implementation, which may result in firings for employees who violate the policies, are proving to be fodder for an Obama-appointed National Labor Relations Board (NLRB or board) that has sought to re-energize the legal doctrine known as "protected concerted activity."

As this column discussed in April, "protected concerted activity" is a concept under the National Labor Relations Act (NLRA) that covers almost all United States private sector employees, not just those represented by unions. Under the doctrine, employees are protected from adverse employment actions, such as firings and demotions, when they engage in activities pertaining to wages, hours and other terms and conditions of employment on behalf of not just themselves, but their co-workers. Hence, the term "concerted activity." The NLRB, which administers the NLRA, is charged with ensuring that employers do not discourage protected concerted activity or take adverse employment action against employees who engage in such activity.

Within the last year, in three high-profile cases, the NLRB filed unfair labor practice complaints against employers who allegedly took adverse employment actions against their employees who used Facebook to post negative commentary about the employers, their businesses or their employees. In all these cases, the board alleged or alleges that the employees, in posting their Facebook comments, were engaged in "protected concerted activity."

In the first case, filed last October, the board's general counsel alleged that American Medical Response of Connecticut (AMR) had illegally fired an employee who criticized an AMR supervisor on her Facebook page. American Medical Response of Connecticut, Inc., Case No. 34-CA-12576. AMR at the time maintained in its employee handbook a policy, titled "Blogging and Internet Posting Policy," that expressly prohibited workers "from making disparaging, discriminatory or defamatory comments when discussing the company or the employee's superiors, co-workers and/or competitors." The handbook further forbade employees from posting pictures of themselves "in any media, including but not limited to the Internet, which depicts the company in any way" without management's prior written approval.

The case was set to be tried before an NLRB administrative law judge (ALJ) on Feb. 8, 2011, but settled the day before. According to a board news release, AMR agreed to reform its "overly broad" employee communication policy. AMR also reached a private, nonpublished agreement with the terminated employee. The board's first shot in the battle over protected concerted activity in a social media world had been fired.

On May 9, the board's general counsel filed a similar complaint against a Buffalo, N.Y., nonprofit social services organization. Hispanics United of Buffalo, Inc., Case No. 3-CA-27872. In Hispanics United, employee Mariana Cole-Rivera was scheduled to meet with her bosses to discuss certain job-related issues. The day before the meeting, Cole-Rivera posted on her personal Facebook page a co-worker's complaint that other co-workers were not working hard enough. Four other Hispanic United employees fired back, posting on the page their criticisms of the organization's staffing levels and workloads.

Unsurprisingly, management learned of the contretemps. It determined that the Facebook posts were online harassment of the co-workers Cole-Rivera named in her post and fired all five posters, including Cole-Rivera.

The NLRB, in its complaint, alleges that the Facebook postings were concerted complaints about working conditions at Hispanic United and that Hispanic United fired the posters "to discourage employees from engaging in these or other concerted activities." A hearing before a board ALJ is scheduled for June 22.

And in a more recent case closer to home, the board on May 20 issued a complaint against north suburban Lake Bluff-based Knauz BMW, alleging that the auto dealer wrongfully fired a salesman who engaged in protected concerted activity. Karl Knauz Motors, Inc., Case No. 13-CA-46452. In Knauz, the dealership staged an event promoting a new BMW model. One of its salespersons, Robert Becker (Becker), unhappy with the food offered at the event, posted photographs and commentary on his Facebook page critical of the dealership, saying that potential customers were served only hot dogs and bottled water. Other salespersons allegedly were concerned that their sales commissions would decline as a result of the cheap eats.

Knauz management learned of the posting and asked Becker to remove the offending posts. He did. Knauz fired Becker shortly thereafter. A hearing is scheduled for July 21.

Is there a trend here? Of course. Although the board historically has not protected employees proven to be out-and-out disloyal to their employers, the line between disloyalty and protected concerted activity appears to have blurred, to the employees' favor, under this board's iteration.

While employers continue to have a duty to protect employees from certain types of harassment by co-workers, and an interest in ensuring employee fidelity, in today's climate, a hair-trigger approach to unflattering social media commentary most likely will draw complaints similar to those issued in Knauz, AMR and Hispanics United.

 
Reprinted with permission from Chicago Daily Law Bulletin.