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It wasn’t that long ago that e-mail was new. Today, it is a routine form of communication, and social media websites such as Facebook and Twitter have become a favored means of communication for many. The way we communicate has changed, and for U.S. employers, that change offers great opportunities, and great challenges. Employees are now “tweeting” and “facebooking,” often during work hours and on employer-owned equipment, and some of these communications may even pertain to work-related issues and concern co-workers. As social media continues to evolve, employers’ rules regarding employee communications, both while at work and while off work, must evolve as well. Recent actions by the National Labor Relations Board (“NLRB”) amplify the challenges faced by employers in adapting their work rules to communications in the social media world.

The National Labor Relations Act (“NLRA”) protects the rights of employees, whether unionized or not, to engage in protected “concerted activities” with fellow employees. As it relates to communication issues, the NLRA protects the right of employees to discuss their working conditions, wages and other terms of employment with one another. In the social media age, that right to communicate bumps up against employers’ efforts to regulate social media exchanges by their employees. Several recent cases at the NLRB highlight this tension, as Regional Offices of the NLRB have issued complaints against companies that have disciplined employees for engaging in social media exchanges relating to their workplaces.

Last Fall, the Hartford, Connecticut office of the NLRB issued a complaint against American Medical Response (“AMR”) that garnered national attention. Dawnmarie Souza, an emergency medical technician for AMR in New Haven, got into a workplace dispute with her supervisor. When she got home from work, she logged onto her Facebook page, and created an angry post. She referred to her supervisor in colorful and less than complimentary terms, and her posting resulted in an online exchange with her co-workers who were also critical of the supervisor. Ms. Souza’s Facebook posting clearly violated AMR’s social media policy, which prohibited employees from “making disparaging, discriminatory, or defamatory comments when discussing the Company or the employees’ supervisors, co-workers and/or competitors.” Ms. Souza was thus fired.

Ms. Souza filed a complaint against AMR with the NLRB, which issued a complaint alleging that AMR had violated the NLRA by discharging Ms. Souza. In a nutshell, the NLRB alleged that by making critical remarks about her supervisor to other employees, even through a Facebook page that could be accessed by non-employees, Ms. Souza was engaging in concerted activities protected by the NLRA. In addition, the NLRB concluded that AMR’s social media policy itself violated the NLRA, because AMR’s restrictions on employee blogging, internet posting, and communications purportedly interfered with and restrained employee rights under the NLRA.

The AMR case settled in January, and the NLRB announced the settlement in a February 7, 2011 press release that provided notice to all employers of the NLRB’s view of social media policies:

… the company agreed to revise its overly-broad rules to ensure
that they do not improperly restrict employees from discussing
their wages, hours and working conditions with co-workers
and others while not at work, and that they would not discipline or
discharge employees for engaging in such discussions.

This AMR settlement has been followed by other complaints of a similar ilk in other Regions. On May 9, the Buffalo office of the NLRB issued a complaint against a New York non-profit, Hispanics United of Buffalo, Inc., alleging that the non-profit violated the NLRA by terminating five employees who had complained about their working conditions in a Facebook discussion. Within the last two weeks, the Chicago office of the NLRB issued a complaint against a Chicago-area luxury car dealership after the dealership discharged an employee for posting a message on his Facebook page that involved employee concerns about the dealership’s handling of a sales event, and its impact on employee earnings.

It is important to note that the AMR case was resolved by settlement, and the two more recent cases cited above have not been tried, so there has been no new legal precedent, even by an administrative law judge. In fact, as recently as 2009, the NLRB’s General Counsel issued an Advice Memorandum that supported the legality of a social media policy prohibiting “disparagement” of a company or its officers and employees in any form of social media. However, the recent complaints filed by the NLRB Regional Offices portend a change in direction. Under new acting General Counsel Lafe Solomon, whose office prosecutes alleged violations of the NLRA, the NLRB looks to be moving in a direction that seeks to limit an employer’s right to implement and enforce social media policies that might limit an employee’s ability to communicate with co-workers about the terms and conditions of his/her employment.

So what is an employer to do? We are advising employers not to overreact, as the limits on an employer’s right to regulate its employees’ use of social media is still to be determined by the Board and ultimately, the courts. However, employers would be well served to review their social media policies and to revise policies that might be read to limit the right of employees to communicate about the terms and conditions of their employment. At a minimum, revisions might include a disclaimer, at least to the extent that the social media policy will not be applied so as to interfere with an employee’s rights under the NLRA. As with all policies, the content and breadth of the disclaimer should be tailored to the particular needs and industry of the employer. In addition to revisions to written policy, employers are advised to consider employee rights under the NLRA before imposing discipline for violations of social media policies, and to consult with counsel before imposing such discipline.

This advisory was prepared by Liam O’Connell, chair of the Labor, Employment and Benefits practice group at Nutter McClennen & Fish LLP. For more information, please contact Liam or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.