January 9, 2012

Written By: David J. Truelove

You are a diligent, fair and considerate employer. You have in place all appropriate policies, handbooks and guidelines for your staff and entire workforce. You have engaged in periodic training and updates, and ensure that all of your employees are properly notified of changes in policies, etc. as recommended or mandated by changes in the law.

Among your recently-implemented policies is a Social Media Policy, in which you set forth clear guidelines for employee behavior on and off work, through such social media outlets such as Facebook, LinkedIn and Twitter.

Recently you discovered that a few disgruntled employees have publicized their collective workplace “gripes” on Facebook, inviting other employees to comment. Knowing that the claims are disparaging at best, and ridiculous at worst, but certainly detrimental to employee morale, you take quick action to stop the interactive group complaints by suspending and/or terminating the employees who engaged in these “inappropriate discussions…”

Your disciplinary decisions are based on clear company policy language regarding such use of social media outlets and you have documented your investigation leading up to the discipline. No discrimination has occurred—all have been treated without regard to age, gender, race, ethnicity, sexual preference or any other protected class. Your company is not a “union shop” so no grievances will be filed.

You believe that you have done everything properly in accordance with published company policy and thus also believe that there can be no employee repercussions, except for perhaps annoying unemployment compensation hearings. You are confident that you have nothing to worry about in terms of employee action regarding the discipline.

Now consider the following:

Recently the National Labor Relations Board (“NLRB”) has addressed cases concerning employee conversations or postings on Facebook and other social media. While none of the cases involved unionization or union-related activities, the NLRB did assume jurisdiction in those instances in which it deemed “concerted activity” occurred among the employees using Facebook postings to discuss issues at work.

In two instances, employees’ online complaints about an employer’s policies and other conditions of employment resulted in their discharge. Enter the NLRB ruling that the Facebook conversations and comments were protected “concerted activity” under the National Labor Relations Act (“NLRA”) and mandated the employees’ reinstatement plus damages.

The NLRB overturned the company’s disciplinary action as unlawful under the NLRA on the grounds that the employees’ discussions were protected expressions about shared concerns relating to “terms and conditions of employment.” In both instances, the employer was a non union company and imposed the discipline against their employees following existing written company guidelines and policies.

By contrast, where only one employee was making online comments about working conditions, the NLRB determined that the employee’s gripes did not constitute protected “group” or “concerted” activity involving shared concerns about the terms and conditions of employment.

These decisions should cause all employers, union and non union alike, to be wary and to act cautiously in drafting and enforcing social media policies or risk running afoul of the NLRB. These cases highlight the reality that even non-union employers are within the NLRB’s oversight, so informed employees who have been disciplined for posting group concerns (regardless of their interpretation by the employer) on Facebook or other social media outlets about the workplace, may be successful in obtaining redress before an agency traditionally limited to union-related matters.

Hill Wallack LLP attorneys can provide the necessary review and advice in drafting, updating and enforcing social media policies.

For more information concerning our Employment & Labor Group, click here.

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For more information, contact one of the attorneys who work in this area:

Alert Author

David J. Truelove, Esq.

Pennsylvania

Francis J. Sullivan, Esq.
Carolyn M. Plump

New Jersey

Maeve E. Cannon, Esq.
Rocky L. Peterson, Esq.
Suzanne M. Marasco, Esq.

This article provides information of general interest and is not intended, and should not be used, as a substitute for consultation with legal counsel. Any questions regarding the specific issues raised in this article should be directed to the authors or to your contacts at Hill Wallack LLP.