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Social media seems to be a favorite forum for employees to complain about their workplace.  Firing employees for posting work-related social media messages can land an employer in trouble.  But is management absolutely forbidden from firing employees for making offensive comments on social media?  Is there a line employees may not cross?  The Second Circuit Court of Appeals took up this question recently in NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017).

The Facebook Firing

In early 2011, New York catering company Pier Sixty was in the middle of a tense organizing campaign that included management threatening employees who might participate in union activities.  Two days before the unionization vote, Hernan Perez was working as a server at a Pier Sixty Venue.  His supervisor, Robert McSweeney, gave him directions in a harsh tone.  On his next work break, Perez posted this message on his Facebook page:

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people! ! ! ! ! ! Fuck his mother and his entire fucking family! ! ! ! What a LOSER! ! ! ! Vote YES for the UNION! ! ! ! ! ! !

Perez knew that his Facebook friends, including ten coworkers, could see the post, although he allegedly thought his Facebook page was private.  Perez removed the post three days later, but not before it came to management’s attention.  Perez was fired after an investigation.

The National Labor Relations Board (NLRB) decided that Pier Sixty unlawfully terminated Perez in retaliation for “protected, concerted activities.”  Pier Sixty appealed to the Second Circuit and the NLRB filed an application for enforcement of its decision.

Evolving Standards of Whether Obscene Comments Lose Protection

Employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under Section 7 of the National Labor Relations Act (NLRA).  But if an employee’s actions lose NLRA protection if they are “so opprobrious and egregious as to render him or her ‘unfit for further service.’”  See Atlantic Steel Co., 245 NLRB 814 (1979).  Pier Sixty argued that Perez engaged in “opprobrious” conduct by posting obscenities on Facebook.

The Second Circuit noted that the test for opprobrious conduct was unsettled.  The NLRB traditionally used the Atlantic Steel four-factor test that considers the location and subject matter of the discussion, the nature of the employee’s outburst, and if the outburst was provoked by an employer’s unfair labor practice.  But in 2012, the NLRB began using a “totality of the circumstances” test in social media cases to address the unique context of social media and allay concerns that the Atlantic Steel test did not adequately consider employers’ interests.

Second Circuit Sidesteps Review of NLRB’s New Test

Without addressing the validity of the “totality of the circumstances” test, the Second Circuit found “substantial evidence” that Perez’s comments were not so egregious as to lose NLRA protection.  Perez’s message, though vulgar, included workplace concerns and was part of a “tense debate over managerial mistreatment in the period before the representation election.”  Pier Sixty also did not previously discipline employees for widespread profanity in the workplace.  Finally, Perez’s comments were not made in the immediate presence of customers and did not disrupt the catering event.  Despite deciding that Perez’s conduct was not “opprobrious,” the court noted that the case sat “at the outer-bounds of protected, union-related comments” and reminded the NLRB to develop a test giving weight to employers’ legitimate disciplinary interests in preventing employee outbursts in the presence of customers.

Takeaways

Pier Sixty teaches that an employee may not be fired simply for making profanity-laced comments on social media if the comments are related to the workplace.  The fact that the comments are accessible to members of the public, including customers, is not determinative.  So at what point do an employees’ obscene comments lose protection?  That remains an open question after Pier Sixty, but the court’s comments inspire hope that the NLRB will craft a more employer-friendly standard in the future.

 

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Anyone with a smartphone has the ability to record sound and video. This can raise privacy concerns as well as create a record of events without others’ knowledge. For these reasons, companies may prohibit employees from making workplace recordings.   If your employee handbook contains such a rule, consider giving it a second look because the National Labor Relations Board (NLRB) recently struck down “no recording” rules implemented by Whole Foods.

A three-member panel of the NLRB reviewed two workplace policies: one prohibiting employees from making audio or video recordings of company meetings without prior management approval or the consent of all parties to the conversation, and the second prohibiting employees from recording conversations without prior management approval. The stated purpose of both policies was to foster open and honest communication, a free exchange of ideas, and an atmosphere of trust. Allowing employees to record conversations in secret, the policies explained, would deter employees from holding frank discussions about sensitive and confidential matters in the workplace.

The NLRB saw the “no recording” rules differently. In a NLRB Whole Foods Decision, the NLRB ordered Whole Foods to rescind the rules because they effectively violate employees’ rights under Section 7 of the National Labor Relations Act to engage in protected concerted activity. A majority of the NLRB panel expressed concern that the rule would prohibit employees from engaging in protected activities such as “recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.” The majority noted that covert recordings were an essential element in vindicating Section 7 rights in many cases. The employer’s interest in encouraging open and frank communications did not override the Section 7 rights of employees.

One member of the NLRB panel dissented, arguing that employees would reasonably interpret the “no recording” rules to protect, not prohibit, Section 7 activity. However, the majority found the blanket prohibition on all recordings troubling. A witness for Whole Foods testified that the rules would apply “regardless of the activity that the employee is engaged in, whether protected concerted activity or not.” According to the majority, employees would reasonably read the broad and unqualified language of the rules to prohibit recording Section 7 activity.

The decision suggests that a “no recordings” rule that exempts protected activities could be valid. But where to draw the line between protected and unprotected activities remains an open question. Given the NLRB’s tendency to construe the scope of Section 7 activities broadly, a wide range of business discussions could be considered to involve protected activity and thus exempt from a “no recordings” rule. This would make the rule virtually useless. The NLRB’s decision may not be last word on recording rules, however, as Whole Foods has appealed the decision to the Second Circuit Court of Appeals.

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In 2007, the National Labor Relations Board (NLRB) issued its Register Guard decision allowing employers to prohibit employees from using company email to engage in discussions about the terms and conditions of their work with other employees or unions for purposes of “mutual aid and protection,” which are protected under Section 7 of the National Labor Relations Act. In April 2014, the NLRB issued a notice and invitation to the parties in a case involving Purple Communications, Inc. and interested amici curiae to file briefs on whether Register Guard should be overruled. The NLRB received numerous amici briefs on the issue. Employers were relieved when the NLRB deferred a decision on overruling Register Guard in September of last year.

The relief was short-lived. Just three months later, the NLRB reversed course and overruled Register Guard, noting that email “has become a critical means of communication” and is “a natural gathering place” for employees to communicate with each other. In a 3-2 decision involving Purple Communications, Inc., the NLRB ruled that employees who have access to their employer’s email system for work purposes presumptively have a right to use the system for protected communications on nonwork time.

Here are answers to some basic questions about how Purple Communications impacts company email policies:

Must employers give all their employees access to the company email system?

No. Employees have a right to use corporate email for protected communications only if they already are given access to the system for work or personal reasons. Purple Communications does not force employers to grant email access to anyone. For that matter, employers are not required to grant email access to non-employees, including unions and union organizers.

May employers put restrictions on use of company email for protected discussions during nonwork hours?

Maybe. Employers may restrict use of company email to engage in protected discussions during nonwork time by demonstrating that there are actual (as opposed to theoretical) “special circumstances” that “make the ban necessary to maintain production or discipline.” This appears to be a difficult standard to meet. Employers must establish a connection between the restriction and their interest in imposing the restriction.

Is it ok to ban all nonbusiness use of company email?

A total ban would be subject to the “special circumstances” test discussed above. According to the NLRB, the existence of special circumstances “will be a rare case.”

May employers impose guidelines on using nonbusiness of company email?

Yes. Employers may establish specific guidelines for nonbusiness use of corporate email.  Use of corporate e-mail for protected communications may be restricted to nonworking time. Employers also have the right to establish “uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”  The single example provided by the NLRB is “prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.”

May employers monitor their employees’ email use?

Yes. Employers may monitor computer and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for harassment or other activities that could give rise to employer liability. However, employers may not change their monitoring practices specifically in response to union or other protected activity. On that note, any modifications to an email policy that targets protected activity for discrimination is likely unlawful.

Do employers need to change their email policies now?

Purple Communications applies retroactively, so unless the decision is appealed and stayed in the interim, employers should seriously consider modifying their company email policy to comply with the decision.

Does Purple Communications apply to other company electronic communications systems like texting or instant messaging?

Currently no, but the NLRB has signaled that it might extend the reasoning in the Purple Communications decision to other forms of electronic communication in the future.

Prior Coverage:

Purple Haze: NLRB Still Unclear on Whether It Will Stop Employers From Limiting Use of Company Email to Business Purposes

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Federal law clearly gives employees the right to communicate with each other and with unions about work-related matters for purposes of “mutual aid and protection.” Commiseration among co-workers about working conditions, work policies, wages, and the like are concerted, protected activity under the National Labor Relations Act (NLRA).  But must an employer allow employees to use its computer equipment for such communications? Employers breathed a sigh of relief when the National Labor Relations Board (NLRB) answered “no” in its Register Guard decision issued in 2007. Under Register Guard, employees generally don’t have a right to use their employer’s electronic equipment and systems to engage in protected activity, and employers may adopt a policy prohibiting employees from using company email for non-work purposes, including communications concerning protected activity.

Seven years later, the Register Guard rule is cast into doubt. In Purple Communications, Inc., an employee handbook declared that all company computers, Internet access, voice mail, and the e-mail system were the exclusive property of the company and were to be used only for business purposes. The employer prohibited employees from using such company property to engage in activities on behalf of organizations or persons with no business affiliation with the company. Appling Register Guard, the Administrative Law Judge in the case dismissed a union’s claim that Purple Communications’ employee handbook violated the NLRA. The NLRB’s General Counsel appealed the decision, asking the NLRB to overrule Register Guard.

The NLRB invited interested groups to file briefs addressing whether the Register Guard rule should be overturned. Over twenty organizations representing a broad range of union and management interests accepted the invitation and filed amicus briefs with the NLRB. However, the NLRB ultimately chose to defer deciding the issue. See Purple Communications, Inc., 361 NLRB 43 (Sept. 24, 2014).

The NLRB decided the appeal without reaching the controversial issue of whether to overturn Register Guard because it found that the employer had committed other unfair labor practices. A footnote in the decision noted that the NLRB would “sever and hold for further consideration the question whether Purple’s electronic communications policy was unlawful.” This signals that the NLRB is still open to overruling Register Guard, perhaps when a case involving what it considers a more appropriate factual scenario comes along.

For now at least, employers may lawfully adopt work rules restricting use of its email and other electronic equipment and systems to business purposes, and employees may be disciplined for violating such rules. How much longer such rules will stand remains to be seen.

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Birth announcements. Girl Scout cookies fundraisers. Leftovers in the company lounge. We’ve all probably received an email at work on these or similar subjects. It’s uncommon for an employee be disciplined for sending an email of such nature. But would that limit a company’s ability to act when employees circulate emails on more controversial topics?

This question was raised in a recent National Labor Relations Board (NLRB) decision involving the Jet Propulsion Laboratory (JPL) affiliated with NASA.  In re California Inst. of Tech. Jet Propulsion Lab, 360 NLRB 63 (Mar. 12, 2014).  Based on a Homeland Security directive, NASA began requiring JPL employees to submit to federal background checks as a condition of continued employment. Twenty-eight JPL employees who believed that the background check process violated their privacy rights filed a federal class action. The case led to a U.S. Supreme Court decision holding that mandatory compliance with the background check process did not violate the right to informational privacy.  See NASA v. Nelson, 131 S. Ct. 746 (2011).

Several of the plaintiffs felt that management did not adequately inform employees about the actual impact of the Supreme Court decision, so they expressed their view of the decision in emails to their colleagues. The emails were sent to several thousand JPL employees using NASA-owned computers and JPL email addresses. After allegedly receiving complaints about the emails, management issued written warnings to the authors of the emails. The warnings alleged that the authors had violated several work policies prohibiting, among other things, “spamming” co-workers; sending unauthorized, non-work-related emails; and implying JPL endorsement of a position on political, social, or legal issues. The authors filed charges with the NLRB claiming that JPL violated their right to engage in concerted protected activity under Section 7 of the National Labor Relations Act.

The NLRB found that JPL employees frequently circulated emails on topics like charity fundraisers and social causes. Such emails technically violated work policies, but there was no evidence of enforcement in those instances. The discipline in this case was thus suspect. Although employees have no legally protected right to use their employer’s computers to engage in protected concerted or union activity, and may be lawfully disciplined for doing so, management may not choose to enforce only work policies involving concerted protected activity.

The decision is not a prompt to start disciplining employees who offer home-baked cookies to co-workers using email. Email can be a convenient tool for building company morale. But the decision does warn against using work policies pretextually to control discussion of work matters. JPL selectively enforced its work policies to silence certain viewpoints on a work-related issue, as highlighted by the fact that JPL supervisors commented on the Supreme Court decision using their work email accounts without being subjected to discipline. Work rules commonly included in an employee manual but inconsistently enforced– like an email use policy – shouldn’t be used as a basis for silencing employees who criticize management or express dissatisfaction with work conditions.

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