Facebook and the Workplace: How Businesses Must Deal with Protected Speech on Social Media Websites

Saturday, February 11th, 2012 at 4:42 pm, by Jason Georges

Last week, Facebook, the social media behemoth, filed for an initial public offering that is likely to value the company between $75 billion and $100 billion. While the anticipation of one of the largest public offerings in history has given Facebook a great deal of media attention, the company has been talked about in legal circles for the past few months for another reason. With over 483 million daily active users Facebook has become headache for employers that must deal with employees who post unfavorable comments online about their workplace conditions. Due to the ease of posting and the size of the Facebook network, friends and co-workers, as well as clients and customers of an employer, can all see comments made by employees on the site. Conversations that were once reserved for the water cooler have now spread beyond the workplace walls and onto the Internet. As a result, many employers have resorted to suspension and termination as retaliation against those employees who post negative comments online. These employees have brought their cases to the National Labor Relations Board (NLRB) begging the question of what type of speech is protected on social networks and how far employers can go to regulate such speech.

NLRA and Protected Activity

Employees who have been terminated for their Facebook comments have brought their complaints to the NLRB for violations of the National Labor Relations Act (NLRA). Under Section 7 of the NLRA, employees have the right to engage in “concerted activities” for the purpose of collective bargaining or other mutual aid or protection.

Additionally, under Section 8(a)(1) of the Act, it is an unfair labor practice for an employer to interfere with, restrain, or coerce an employee in the exercise of the employee’s Section 7 rights. Because the NLRA applies to both unionized and non-unionized workplaces, all employers are subject to the NLRB’s jurisdiction and decisions made by the NLRB have lasting effects on employers around the country.

Recent Decisions by the NLRB

Two recent decisions by the NLRB have allowed both employers and employees to gain a better understanding of exactly what is considered to be protected activity under the Act when it comes to Facebook. In September 2011, in Hispanics United of Buffalo, Inc. v. Ortiz, an NLRB Administrative Law Judge found that comments made on Facebook by five employees was considered protected, concerted activity and that they had been illegally discharged by their employer. Hispanics United of Buffalo (HUB) is a not-for-profit organization that provides a variety of social and economic services to low-income individuals. In the instant case, an employee at HUB complained about a supervisor on Facebook after being told by the supervisor that she was not doing enough to help the organization’s clients. The employee asked how her co-workers felt about the supervisor—most of the responses were critical of the supervisor and included profanity. All of the employees were fired for their comments, and this was justified by the organization’s policies against harassment and bullying. However, the NLRB concluded that the employees were illegally discharged and that HUB had committed an unfair labor practice. The judge concluded that the posts were protected because they were related to job performance (a matter that employees are allowed to discuss under the NLRA) and that the activity was concerted because the employees were all fired at the same time, showing that HUB viewed them as a unified group.

In another case in the fall of 2011, Karl Knauz Motors Inc. v. Robert Becker, the NLRB determined that an employer did not violate the NLRA when it terminated an employee for his Facebook activity. In the first incident, Robert Becker, a car salesman for Knuaz Motors, posted pictures from a promotional event where his dealership gave out free hotdogs to promote the unveiling of a new BMW model. Becker complained on Facebook that the event was not up-to-par with the excellence that is often associated with BMW and was concerned that a cheap event would impact his commissions. A second incident occurred a month later when Becker posted pictures from an accident at the dealership in which a young boy mistakenly drove a Land Rover into a nearby pond. Becker commented on the pictures with the caption “This is Your Car. This is Your Car On Drugs.” The NLRB determined that the hot dog incident was protected activity because it concerned compensation—customers may have decided against buying a car or may have given a salesperson a lower customer satisfaction rating due to the food offerings. However, the judge concluded that Becker’s comments about the Land Rover accident were not protected because they had “no connection to any of the employees’ terms and conditions of employment.”

NLRB Guidelines on Social Media

At the end of last month, the NLRB’s general counsel issued a “social media report” to provide further guidance to lawyers, managers, and human resource professionals around the country. The report emphasized two main points: 1) “that employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees;” and 2) that an “employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.” The report represents an effort by the NLRB to apply the NLRA to forms of mass communication and social media that were not in existence when the Act was written.

Conclusion

The decisions in the Knauz Motors and Hispanics United of Buffalo cases, as well as the recent report by the NLRB General Counsel, help to provide a clearer picture to employers who struggle to balance the interests of their companies with the rights of their employees. Because the law concerning social media is rapidly changing, employers need to be cautious before terminating employees for comments that may be considered protected, concerted activity. Remarks, although sarcastic or profane, may be protected if they refer to terms of employment and are commented on by fellow employees. Employers should also ensure that companywide policies and employee handbooks do not infringe on employees’ rights to discuss their working conditions. Due to the prominence of Facebook and other social media websites, water cooler conversations have moved from the break room to the Internet and both employers and employers would do well to stay up to date with recent developments.