Big Brother Continues To Patrol Employer Decisions
Two recent developments from the National Labor Relations Board (“NLRB”) appear on their face to be nothing more than two separate findings on opposite ends of the liability spectrum. Yet, they offer a glimpse into a reconcilable “take away” for employers on our issue of social media and employment-related decisions.
We all remember that the NLRB appeared to first take up the cause last October when it filed a complaint against a Connecticut ambulance company arising out of its Facebook-related termination and social media policy. Then, earlier this year, the NLRB threatened to file a complaint against Thomson Reuters Corp. after the company allegedly terminated a reporter because of a tweet concerning “one way to make this the best place to work”. Both of those cases were ultimately resolved without a hearing or decision.
Now come two new NLRB positions. In one, the NLRB filed a complaint in New York alleging that Hispanics United of Buffalo Inc. (a not-for-profit organization) violated the “concerted activities” protection afforded by the National Labor Relations Act (“the Act”) when it laid off five employees who had posted on Facebook about another co-worker’s contention regarding the terms and conditions of their workplace. The Company contends that the individuals were discharged for violating company policy by what it says was harassment of the co-worker mentioned in the initial post. A hearing on the complaint is presently scheduled for June 22nd.
In the second recent development, the NLRB’s Office of the General Counsel issued an “Advice Memorandum” in conjunction with a case involving the Arizona Daily Star. The NLRB determined there that the employer did not violate the Act after admittedly terminating one of its reporters for writing what it deemed to be inappropriate and offensive twitter postings. While the employer had not yet established a formal social media policy, the NLRB was nevertheless convinced that the termination did not retaliate against any protected “concerted activities”, and instead was an appropriate action taken under the company’s respectful workplace policy.
Employer Take Away: What should you as an employer take away from this development?
While the NLRB shows no signs of reducing its efforts to apply traditional claims to the new social media era, the line of demarcation for employers is starting to be visible. For example, unlike the cases where the NLRB ultimately issued (or threatened to issue) a complaint, the Arizona Daily Star case did not appear to involve evidence that multiple employees were involved with the tweeted discussion, and no evidence that the reporter sought the involvement of others. Similarly, there was no evidence that the reporter’s tweets related to the working conditions of the company, and instead the tweets appeared to be mere observations about certain outside activities about which he was reporting.
So while we await further guidance from the NLRB, you should at a minimum ask the following questions before making an employment-related decision: Did the individual at issue communicate with others, or involve others in the discussion, such that the activity may be deemed “concerted”? Did the posts involve a dialogue about working conditions or other issues relating to his or her employment or workplace, such that the activity may be deemed “protected”?