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On January 1, 2017, the National Labor Relations Board (NLRB) Office of the General Counsel released an advice memorandum (dated September 22, 2016) reviewing the social media policy in Northwestern University’s revised Football Handbook.  The memorandum contains valuable guidance in an area full of uncertainty, as the NLRB has struck down seemingly common sense social media policies because of their potential to chill employees’ rights under Section 7 of the National Labor Relations Act (NLRA) to engage in “concerted protected activities.”  Section 8 of the NLRA prohibits employees from restraining employees from exercising their Section 7 rights.

According to the memorandum, Northwestern voluntarily revised its Football Handbook after receiving a charge alleging that the handbook violated the NLRA.  The advice memorandum reviewed the revised handbook for compliance with the NLRA.  Assuming for the purpose of the review that Northwestern’s football players are “employees” under the NLRA, the advice memorandum concluded that the revised social media policy passed muster.

The memorandum reprinted the original language of the policies along with the revisions in redline, as follows (deleted language in strikeout and new language in bold):

[W]e are concerned about… protecting the image and reputation of Northwestern University and its Department of Athletics and Recreation. . . .

Publicly posted information on social networking websites can be seen may be regularly monitored by any person with a smart phone or internet access, including individuals a number of sources within Northwestern University (e.g., Athletics Department, Student Affairs, University Police). . . .

Northwestern student-athletes should be very careful when using online social networking sites and keep in mind that sanctions may be imposed if these sites are used improperly or depict inappropriate, embarrassing harassing, unlawful or dangerous behaviors such as full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment, unlawful activity or any content that violates Northwestern University, Athletics Department or student-athlete codes of conduct and/or state or federal laws.

….

Do not post any information, photos or other items online that contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity could embarrass you, your family, your team, the Athletics Department or Northwestern University.

Although the advice memorandum did not elaborate on why the original policy could violate the NLRA while revised policy would not, it provides important clues on drafting lawful social media policies.  The modifications to the policy generally substituted vague terms like “inappropriate” and “embarrassing” with descriptions of the content that the policy prohibits.  For example, the revised policy specifically prohibits social media posts depicting “nudity,” “racial or sexual epithets,” and “underage drinking,” among other things.  The revised policy also eliminated protection of the employer’s “image and reputation” from the description of the policy’s purpose.  In previous guidance, the NLRB has determined that employers may not require employees to refrain from engaging in activity that generally damages the employer’s reputation because that could be construed to prohibit “concerted protected activity” such as criticism of work conditions or compensation policies.

The recent advice memorandum reinforces the need to be precise when drafting a social media policy.  Experienced counsel can assist in identifying the types of social media content that the NLRB has allowed employers to prohibit employees from posting.

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You’ve adopted a social media policy after hearing all the warnings about employees behaving badly on social media. But do you enforce the policy consistently? Failure to do so can be risky business, as illustrated by a recent federal court decision, Redford v. KTBS, LLC, 2015 WL 5708218 (W.D. La. Sept. 28, 2015). The court in Redford allowed an employment discrimination claim to continue because of management’s uneven enforcement of its social media policy.

The social media policy of KTBS, a Louisiana TV station, instructs employees not to respond to viewer complaints on social media. Chris Redford, an on-air crime reporter for KTBS and a white male, posted a negative comment on his Facebook page in response to a viewer’s comment on a KTBS story. Redford was fired for violating the KTBS social media policy.

Redford sued KTBS for race and sex-based employment discrimination. Redford pointed to KTBS’ treatment of two other employees for their social media conduct. Lee, an on-air personality and an African-American female, responded multiple times to negative viewer comments on the official KTBS Facebook page. She received numerous warnings from management before being fired on the same day as Redford. Sarah Machi, an on-air personality and a white female, responded negatively to a KTBS viewer’s comment on her personal Facebook page, but received no warning or discipline. Based on this evidence, Redford argued that KTBS fired him not for violating the social media policy, but to prevent a potential lawsuit by Lee for race or sex discrimination. According to the court, Redford had a viable claim that he was treated less favorably than Lee and Machi because of his race or sex.

KTBS argued that it took no action against Machi because she posted her comments on her personal Facebook page, which was set to “private” so that only her Facebook friends could access it. Redford’s Facebook page did not have privacy filters turned on, and he often used his page to promote his work at KTBS. Since KTBS apparently considered comments posted on an employee’s “private” Facebook page to be outside the scope of its social media policy, the court reasoned that KTBS’ stated reason for firing Redford could be pretextual if Redford’s Facebook page was considered “private.” This issue had to be resolved at trial, so the court denied summary judgment to KTBS on the pretext issue.

Redford is a good reminder of the importance of consistent enforcement of social media policies. Even-handed enforcement is made easier by clearly spelling out the scope of the policy. If the policy makes a distinction between “company” and “personal” pages, for example, describe the specifically and consider providing examples. Ambiguity and inconsistency are your worst enemies when it comes to enforcing a social media policy.

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Social media can be risky business.  Whether an organization embraces or ignores social media, it or its employees probably already have a presence on a social network.  That simple reality can be costly for an organization without proper measures in place to deal with the risks of social media misconduct.  Readers of this blog are familiar with cases where business saw their reputations marred by employees who post embarrassing photos online about work mishaps or found themselves in legal trouble for firing an employee who vented on Facebook about a co-worker.

To help organizations manage the risks of social media activity, I’m proud to introduce SM Safety, a new line of services offered by my law firm.  The approach of SM Safety can be summarized in three words, each corresponding to a level of service that meets a particular need: checkup, plan, and audit.

A SM Safety Checkup is a low-cost way to ensure that an existing social media policy is legally compliant and effective.

A SM Safety Plan is for organizations who need assistance with preparing a new social media policy or enhancing an existing policy.

A SM Safety Audit is a comprehensive review of an organization’s overall presence in the social media space to identify exposure to legal risks due to social media use.

Each SM Safety service is offered for a flat fee.  To learn more about SM Safety or to obtain a quote, visit the SM Safety Services page on this site.

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Facebook comments about condition of company vehicles are protected under the NLRA; a Facebook rant about fake problems with the company car, not so much – Butler Medical Transport, LLC, 2013 WL 4761153 (N.L.R.B. Div. of Judges)

A recent decision by a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) gives employers insight on when they can and cannot fire an employee for their social media conduct outside of work.  Particularly interesting is the fact that this decision involved two separate terminations, one of which the ALJ found illegal, and the other not.

The Norvell Termination

William Norvell worked as an emergency medical technician for an ambulance company, Butler Medical Transport (Butler).  While on his personal computer at home, Norvell read a post by a co-worker (Zalewski) on her Facebook page stating that she had been fired.  Zalewski attributed the firing to a patient report to management that she complained about the condition of Butler’s ambulances.  Several people, including another Butler employee, posted comments inquiring into the incident, to which Zalewski responded with more posts about the patient’s report.  Norvell responded to Zalewski with this comment:

“Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.”

Another person posted a comment suggesting that Zalewski find a job with another ambulance company.  After Zalewski asked where the company was located, Norvell posted the location and added, “You could contact the labor board too.”

Butler’s HR director obtained hard copies of these posts, and in consultation with the COO, decided to terminate Norvell.  The HR director told Norvell that he was being terminated for violating Butler’s bullet point list of work rules, one of which prohibited employees from using social networking sites that could discredit Butler or damage its image.

The ALJ determined that Norvell’s Facebook posts were protected concerted activity.  By advising Zalewski to see a lawyer or contact the labor board, Norvell was “making common cause” with a co-worker about a matter of mutual concern to the employees, i.e., the condition of Butler’s ambulances.  Norvell’s posts had protected status even though they were accessible to people outside of the company because Section 7 of the National Labor Relations Act (NLRA) extends to employee efforts to improve the terms and conditions of employment through channels outside of the employer-employee relationship.  The ALJ did not find posts to be so disloyal, reckless, or maliciously untrue as to lose their protected status.  The termination of Norvell based on his Facebook posts therefore violated Section 8(a)(1) of the NLRA.

The Rice Termination

Another Butler employee, Michael Rice, posted this comment on Facebook:

“Hey everybody!!!!! Im fuckin broke down in the same shit I was broke in last week because they don’t wantna buy new shit!!!! Cha-Chinnngggggg chinnng-at Sheetz Convenience Store,”

Butler terminated Rice for making this post.  At the trial hearing before the ALJ, Butler produced maintenance records showing that Rice’s vehicle was not in disrepair when he made the post.  Rice had also testified at his unemployment insurance hearing that his post referred to a private vehicle rather than a Butler ambulance.  There being no evidence to the contrary, the ALJ determined that Rice’s post was not protected by Section 7 because it was maliciously untrue and made with the knowledge of its falsity.  As a result, Rice’s termination was not illegal.

Legality of Work Rules

Also under scrutiny was the legality of two of Butler’s work rules, one prohibiting the “unauthorized posting or distribution of papers,” and the other requiring employees to acknowledge that they “will refrain from using social networking sights [sic] which could discredit Butler Medical Transport or damages its image.”  Butler argued that the rules were not official company policy because they were stated in a bullet point list.  The ALJ rejected the argument as making a distinction without a difference.  Butler relied on the bullet point rules in terminating Norvell and Zalewski, and new employees were required to acknowledge receipt of the list.  As such, employees could reasonably understand that they would be disciplined for failing to follow the rules on the list.  The ALJ found that the rules violated Section 7 activity because they prohibited employees from communicating to others about their work conditions.

LegalTXTS Lesson:  This case doesn’t break new ground, but it does contain a few important reminders for employers grappling with how far they can go in regulating the social media activity of employees.

1.  A policy by any other name … is still a policy. Butler’s failure to convince the ALJ that the bullet point list was not company policy should serve as a reminder that if a company communicates a rule to its employees in writing, expects them to follow the rule, and disciplines them if they don’t, the rule is effectively a policy.  It doesn’t matter that the rule appears in a document whose title doesn’t include the word “policy,” or that the wording of the rule is informal.

2.  Write it right.  Given how easily a supposedly informal rule could qualify as a policy, a company should take care in articulating its work rules in the form of an official written policy.  Consult with counsel to make sure the wording doesn’t inadvertently violate the law.

3.  Don’t go overboard.  The NLRB has consistently frowned upon work rules that flat out prohibit employees from posting content on social media that damages the reputation of their employer, or worse yet, bars them completely from speaking to others about work-related issues, whether on social networking sites or other media.  (For examples, see the related posts below).  Reject categorical bans on employee speech in favor of rules that focus on creating or avoiding specific results.

4.  Context matters.  Before disciplining an employee for a social media post, understand the context in which the post was made.  Is the post about a work-related issue that other employees have discussed before?  Does the post call for co-workers to take action?  Asking such questions helps management determine if the post is protected under the NLRA.

Related Posts:

NLRB dishes out confusion on social media policies

NLRB sanctions employees who fire employees for online “protected concerted activity”

DirectTV’s work rules invalidated by NLRB

 

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UPDATE:  On April 30, 2013, a three-member panel of the NLRB adopted the ALJ’s decision in this case.  Read the board decision here (the ALJ decision and the Dish Network social media policy that got invalidated are attached).

The NLRB recently dealt another blow to the ability of employers to prohibit employees from engaging in disparaging speech on social media.  On November 14, 2012, an Administrative Law Judge (“ALJ”) of the NRLB issued a decision striking down two rules in Dish Network’s employee handbook dealing with social media use.  The first rule prohibited employees from making disparaging or defamatory comments about their employer.  The ALJ found that the rule could unlawfully chill employees in the exercise of their Section 7 rights to engage in concerted activity.  The second rule prohibited employees from engaging in “negative electronic discussion” during company time.  This rule could effectively ban union activities during breaks and other non-working hours at the workplace, the ALJ concluded.

This was not the first time Dish Network’s social media policy came under fire.  On May 31, 2012, the Acting General Counsel of the NLRB issued a memo criticizing provisions of actual social media policies.  Dish Network was one of the companies whose policies were scrutinized in the memo.  But while the memo was merely advisory, the latest ALJ ruling is not.

Recent NLRB rulings like this one leave behind a wake of confusion for employers.  Provisions that are commonplace in employee handbooks, like non-disparagement rules, are being invalidated when applied in the social media context.  To add to the confusion, the NLRB can seem inconsistent.  For example, the May 30 memo approved Wal-Mart’s social media policy, which includes an instruction to “refrain from using social media while on work time” or on company equipment.  However, the NLRB struck down Dish Network’s practice of banning social media activity on company time.  What’s an employer to do?  Few definitive answers are available, but here are a few ideas to help you survive in this uncertain environment:

  • Stop treating social media as a novelty.  Employers who still regard social media as a frivolous activity tend to use draconian measures (like categorical bans) to regulate it.  The reality is that social media has become part of everyday life, nearly as much as cellphones and texting has.  The point is not to restrict social media use per se, but to manage the consequences of such use.  Which leads us to . . .
  • Focus on outcomes.  Dish Network very well could have intended its non-disparagement work rule to protect its brand and reputation rather than prohibit employee discussion about their work conditions or compensation.  However, the rule did not clearly spell out its objectives.  Tell employees the outcomes you want to avoid.  If what you want to prevent are discriminatory remarks that create a hostile work environment, say so.  This was one of the features of the Wal-Mart policy that the NLRB’s May 30 memo approved.  In a section of the policy entitled “Be Respectful,” Wal-Mart states that if an employee decides to post complaints or criticism, they should ” avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.”  The policy then listed examples of such conduct, such as “offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability,religion or any other status protected by law or company policy.”
  • Stay positive.  Rather than just banning certain kinds of conduct on social media, consider setting affirmative guidelines that employees should adhere to when communicating with others, whether on social media or other communication channels.  For example, do you want your organization to be portrayed in a certain way?  Then describe the image you would like your employees to convey to others in their communications when talking about the organization.
  • It’s not over.  The NLRB rulings are not the final word on how broadly employers may regulate social media activity of employees.  Although ALJ decisions and even those of NLRB panels are more authoritative than guidance memos, courts have yet to weigh in.