With social media everywhere, employers face unique challenges when it comes to their employees’ use and conduct.  Not surprisingly, employees have been known to share information about their employers, including negative statements and damaging information, sometimes hurting the employer’s reputation; however, challenging employee social media posts can be tricky, difficult and potentially illegal.

Additionally, the National Labor Relations Board (NLRB), wants to expand protection. Section 7 of the National Labor Relations Act (“NLRA”) was traditionally viewed as protecting employee rights to organize and collectively bargain; however, the National Labor Relations Board (“NLRB”) has recently focused on whether employer social media policies unlawfully interfere with employees’ rights under Section 7 to engage in “protected concerted activities” for their mutual aid and protection.

Section 7 is not limited to unionized workplaces
The NLRA protects the rights of employees to act together to address conditions at work, with or without a union. 
In 2010, the NLRB began receiving charges relating to employer enforcement of social media policies, specifically about discipline for postings on Facebook, Twitter and YouTube. Since then the NLRB has issued numerous decisions addressing this area. The threshold issue is whether the employee’s online communication constitutes a protected concerted activity. If so, any disciplinary action taken against the employee violates the NLRA. To be protected under the NLRA, the concerted activity must involve mutual aid for employees about wages and/or working conditions. 

In a 2013 case, an employee posted her complaints on Facebook about her supervisors’ treatment of subordinates.1 Coworkers with similar complaints posted supportive comments—one posted that she was going to bring to work a book on employee rights in the workplace. The supervisor became aware of the posts and fired the employees who had posted. The NLRB held that the terminations violated the NLRA because the Facebook posts were protected concerted activity.

Even if an employee’s posts are rude and disrespectful, they may still be protected activities if they are considered “concerted” in nature. Concerted activity may lose legal protection only if it is so flagrant, violent, or extreme as to render the employee unfit for service. Additionally, illegal activity and deliberate lies are typically not protected.

Protected and Unprotected Social Media Activity
In determining whether employee social media posts constitute “protected activity,” the NLRB primarily focuses on whether the post is “concerted,” in an attempt to mutually address workplace conditions. For example: 

• A bank fired a teller for repeated failure to balance her drawer. She posted a rant on her Facebook page against the bank. Several current employees “liked” her post. Another current employee took a screenshot of the rant and the “likes” and gave them to bank management. The president wanted to fire the employees who had “liked” the terminated employee’s post. Because this could be considered “concerted activity,” the decision was made not to terminate the employees. 
• An employee who was arguing with a coworker about job performance and staffing levels posted his discontent on Facebook and asked other employees to leave comments, to which several people replied. The employee who posted the content was fired and so were all who commented. Because they were “discussing working conditions,” the NLRB found that they engaged in protected activity. The employer was sued for wrongful termination.
• An employee was fired for “Tweeting” negative comments about her employer, including that they didn’t care about employees. No other employees “liked” that post. The NLRB did not defend her, citing that she was not seeking support or input from her fellow employees, and since there was no intent to create a group action against the employer, the NLRB found that the employee was “airing a personal gripe,” which is not protected.

Guidance for employers
NLRB decisions provide insight on drafting company social media policies that don’t violate the NLRA. For example:

• Avoid broadly prohibiting employees from using the company logo or name in non-work related social media communications. Restrictions should be limited to improper use.
• Be specific about terms like “confidential” and “inappropriate.” Truly confidential information, like trade secrets or customer information, is not protected. 
• Do not prohibit employees from “friending” each other.

Not all social media activity is protected.
Examples of acceptable social media policies include: 

• Forbidding employees from impersonating their employer or making statements on the employer’s behalf without authorization.
• Encouraging employees to resolve workplace grievances internally and to refrain from posting comments that can be viewed as malicious, obscene, threatening, intimidating or that could create a hostile work place.
• Requesting that employees do not disclose trade secrets, publish internal reports, or provide tips based on inside information.
• Restricting employees from accessing or using social media for personal use during company time with company equipment. 

Additional detailed guidance is available at NLRB.gov. We recommend that employers have their legal counsel review social media policies for compliance with the NLRA, and we suggest that employers seek guidance before taking adverse action against an employee for social media activity.

Margarite Irefin is a sophomore at Dartmouth College who interned in ABA Insurance Services’ legal department. With a major in Economics and a minor in English and French, Margarite is a Dartbeat Writer for her college’s newspaper, “The Dartmouth.” She plans on pursuing a career in law. Jennifer H. Gorman is a Senior Attorney, specializing in employment practices issues. She can be reached at jgorman@abais.com.