1. society
2. work
3. unions

American Bar Association
Committee on the Development of the Law Under the NLRA
2012 Midwinter Meeting
WHY DON’T WE GET DRUNK AND POST?:
WHEN MAY EMPLOYERS DISCIPLINE FOR
EMPLOYEES’ POSTINGS WITHOUT RUNNING AFOUL
OF THE NATIONAL LABOR RELATIONS ACT?
“SOCIAL MEDIA AND THE NLRA”: REPORT OF THE
OFFICE OF THE ACTING GENERAL COUNSEL
CONCERNING SOCIAL MEDIA1
OM MEMO 11-74
Amy J. Zdravecky
Gwen B. Morales
Franczek Radelet P.C.
Chicago, Illinois
February 26-29, 2012
Key West, Florida
1
According to Acting General Counsel “social media include various online technology tools that enable people to
communicate easily via the internet to share information and resources. These tools can encompass text, audio,
video, images, podcasts, and other multimedia communications.” See Report of the Acting General Counsel
Concerning Social Media Cases, OM 11-74, Office of the General Counsel, Division of Operations-Management,
August 18, 2011 (hereinafter “Mem. OM 11-74”).
I.
INTRODUCTION
Activity on social media websites such as Facebook and Twitter both in the workplace
and off hours has generated a host of new challenges and questions for employers seeking to
regulate employee conduct. One area that is particularly difficult to navigate is the application of
the familiar principles of Section 7 of the National Labor Relations Act (the “Act”), which protects
employees who engage in “concerted activities for the purpose of collective bargaining or other
mutual aid or protection,” to this entirely new context. With decades of precedent interpreting
the Act, employers, unions, human resource and labor law professionals are by now well
acquainted with the application of Section 7 to the traditional variations of employee speech in
the workplace – to the situation, for instance, where an employee incites a rally amongst his
coworkers from a table in the crowded lunchroom to protest an employer’s new break schedule,
or where employees gather around the water cooler to share gripes about a supervisor.
However, employers are concerned because “yesterday’s water cooler talk is not the same as
broadcasting disparaging comments on Facebook that could reach millions of people.”2 How
then, does an employer decide when an employee’s post or discussion on a social media
platform constitutes a protected posting versus an act for which it may legitimately discipline?
Given the prevalence of social media in our society and the broad reach of Section 7, which
protects employees in unionized and non-unionized workplaces alike, this issue is one every
employer is bound to confront.
Since October 27, 2010, when the National Labor Relations Board (the “Board”) first
issued a complaint based, in part, on an employee’s discharge for comments made on
Facebook, charges and complaints regarding social media activity have proliferated rapidly.3
Recognizing the challenges of applying the traditional principles of Section 7 to this new context,
and aiming to provide guidance to labor law practitioners and human resources professionals,
the Office of the General Counsel (OGC) first issued a directive in April 20114 requiring all NLRB
Regional Offices to submit cases to the Division of Advice (hereinafter “Advice”) if they involve
“employer rules prohibiting or discipline of employees for engaging in, protected concerted
2
Ameet Sachdev, Social Media Emerges as Battleground for Protected Speech at Work, CHI. TRIB., Sept. 2, 2011.
According to the Wall Street Journal, “[s]ince the rise of Facebook and Twitter, companies believed that they had
the right to fire employees who posted complaints or hostile or rude comments online about their employers,”
however, in the last 12 months, more than 100 employers have been accused by workers of improper activity related
to social media practices or policies. Melanie Trottman, For Angry Employees, Legal Cover for Rants, WALL ST. J.,
Dec. 2, 2011, at 1.
4
General Counsel Memorandum 11-11, Mandatory Submissions to Advice (April 12, 2011).
3
1
activity using social media, such as Facebook or Twitter.” In August 2011, the OGC issued its
first comprehensive report on its findings in social media cases.5
The OGC’s memorandum emphasizes that the Board’s existing standards for defining
protected concerted activity will be used to analyze employee activity in the social media context
as well. It is clear from these cases that the Board first considers whether the conduct is
“concerted,” i.e., intended to induce group action, and then whether it is “protected,” i.e.,
involving terms and conditions of employment. If the conduct is both concerted and protected,
the Board then decides whether the conduct is so “opprobrious” that it has lost its protection of
the Act. The question of whether a comment or discussion on a social media site falls into the
above categories of protected concerted activity is far more complicated and less clear than it
sounds. For starters, the question of whether the conduct is concerted is unclear, and has, so
far, appeared to turn on whether a) any coworkers are also “Facebook friends” or “Twitter (or
other blog) followers” to the employee posting, b) whether any of these coworkers responded to
the online post and 3) the nature of any response. Furthermore, because the motivation behind,
and intention of, a Facebook post or conversation is not readily evident, the determination of
whether such a post is protected involves a good deal of interpretation, leading to some
inconsistent, confusing and even contradictory results. While the OGC is attempting to take
well-established legal standards and apply them to this different form of communication,
employers are concerned because of the potential widespread impact social media posts can
have on employers’ reputations, as compared to employee discussion that takes place around
the water cooler. Moreover, as the OGC’s positions have not yet been tested by the Board or
the courts, it is somewhat difficult to predict whether the OGC’s Memoranda truly provide any
kind of guide to making decisions in social media cases.6 At this point, the only sure-fire take
5
See Mem. OM 11-74. On January 24, 2012, just as this paper was being finalized, the OGC released a second,
follow-up memorandum explaining its decisions in 14 additional social media cases. In 7 of these 14 cases, the
OGC discusses cases involving employers’ social media policies – 5 of which were found to be unlawfully broad.
In addition, in 5 of the 14 cases, the disciplinary actions issued in response to social media postings were also found
unlawful. See Report of the Acting General Counsel Concerning Social Media Cases, OM 12-31, Office of the
General Counsel, Division of Operations-Management, January 24, 2012 (hereinafter “Mem. OM 12-31”). While
Mem. OM 11-74 deals not only with social media cases involving employers’ policies and discipline of employees
for social media posts, it also addresses cases involving union pre-election conduct and employers’ obligations to
bargain with unions before unilateral implementation of social media policies. Those subjects, however, will not be
covered in this paper; rather, the focus of this paper addresses the question as to the circumstances in which social
media postings are protected concerted activity, versus activity for which the employer may lawfully discipline and
what activity an employer may prohibit in its social media policies.
6
To date there have only been two social media cases involving employee protected concerted activity to reach the
Board (not just an Administrative Law Judge), and none have yet reached the courts. See Bay Sys Technologies,
LLC, 357 NLRB No. 28 (2011) and Salon/Spa at Boro, Inc., 356 NLRB No. 69 (2010). Unfortunately, neither of
these two cases provides much guidance to employers in deciding whether they can lawfully discipline employees
2
away for employers may be that they need to tread carefully where employees’ social media
activity is concerned.
II.
A SUMMARY OF MEM. OM 11-74
A.
The Legal Standards Used to Analyze Social Media Cases
The initial inquiry in most of the cases discussed in OM 11-74 is whether Facebook or
blog posts that are communicated not only to coworkers, but also to a larger internet audience,
are protected from employer discipline under the Act. The answer, it seems, is yes as long as
the posts involve protected concerted activity.7 To reach this conclusion, the questions that must
be answered are: what is concerted conduct, when is conduct protected, and under what
circumstances does protected concerted conduct lose its protection of the Act?
The first question that the Board asks in these social media cases is whether the
conduct is, in fact, concerted.8 The Board asks two questions to determine whether conduct is
concerted. First, does the conduct - in these cases, the social media posting - involve group
action or seek to induce group action. Second, do the postings reference conversations with
coworkers that occurred before the postings were made or were there conversations with
coworkers after the postings that relate back to the posting? Finally, in social media cases, the
OGC seems to have added a third factor to the concerted test– that is, whether any coworkers
responded to the online posting and if so, the nature of that response.
The Board has held that “[a]n individual employee’s conduct is concerted when he or
she acts ‘with or on the authority of other employees,’ when the individual activity seeks to
initiate, induce or prepare for group action, or when the employee brings ‘truly group complaints
to the attention of management.”9 Such activity is concerted even if it involves only a speaker
and a listener, “for such activity is an indispensible preliminary step to employee self-
for their social media posts. Indeed, as Salon/Spa Boro simply involved an employer’s warning to employees to be
careful with their use of social media that was deemed not unlawful but rather a lawful statement of opinion to be
protected by Section 8(c) of the Act, and Bay Sys was decided on a motion for default judgment, we have little
guidance as to what might be effective arguments for employers in defending disciplinary actions before the Board
in cases involving social media posts.
7
See Eastex, Inc. v. NLRB, 437 U.S. 556, 557 (1978) (recognizing that the Act protects public communications
regarding workplace issues “through channels outside the employee-employer relationship”).
8
See Meyers Indus. (Meyers I), 268 NLRB 493, 494 ((1984), rev’d sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), on remand Meyers Indus. (Meyers II), 281 NLRB 882 (986), aff’d sub nom. Prill v. NLRB, 835 F.2d 1481
(D.C. Cir 1987) (noting that the Board and the courts have generally analyzed the concept of protected concerted
activity by first considering whether some kind of group action occurred and, only then, considering whether that
action was for the purpose of mutual aid or protection).
9
Advice Memorandum, Wal-Mart, Case No. 17-CA-25030, 2011 WL 3223852 (July 19, 2011) (quoting Meyers II,
281 NLRB at 887).
3
organization.”10 Individual activities that are the “logical outgrowth of concerns expressed by the
employees” are also considered concerted.11 In addition, the Board has found that employee
discussions related to shared concerns about terms and conditions of employment constitute
concerted activity even if no specific group action is contemplated because such discussions
usually precede group action.12
On the other hand, comments made “solely by and on behalf
of the employee himself” are not concerted.13 Comments must look toward group action; “mere
griping” is not protected.14 Thus, the Board has held that an employee’s activity is not concerted
when the employee acts alone, with no intent to induce group action, even where other
employees may benefit or where the object of the employee’s action is something about which
other employees should be concerned.15 The question as to whether activity is concerted is a
factual one and the Board will find activity concerted “[w]hen the record evidence demonstrates
group activities, whether ‘specifically authorized’ in a formal agency sense, or otherwise[.]”16 As
we see from the OGC’s Memoranda, however, it has become extremely difficult to predict from
social media cases when an employer can infer that a comment is intended to induce group
action verses when it merely involves an individual gripe.
The second question that the OGC considers in social media cases is whether the
conduct is protected. Indeed, the Act specifically recognizes an employee’s right to engage in
concerted activity “for the purpose of collective bargaining or other mutual aid or protection.”17
Thus, the question that must be answered is does the content of the employee’s social media
post concern wages, hours, benefits or other terms and conditions of employment? To be
10
Id. (citing Holling Press, Inc., 343 NLRB 301, 302 (2004), citing Meyers II, 281 NLRB at 887).
Five Star Transp., Inc., 349 NLRB 42 (2007), enf’d Five Star Transp., Inc, 522 F.3d 46 (1st Cir. 2008) (holding
that drivers’ letters to school committee raising individual concerns over a change in bus contractors were logical
outgrowth of concerns expressed at a group meeting).
12
St. Margaret Mercy Heathcare Centers, 350 NLRB 203, 204 (2007) (finding that employee discussions about the
performance evaluation policy was concerted, despite lack of evidence that employees contemplated group action);
see also Aroostock County Regional Ophthalmology Center, 317 NLRB 218, 220 (1995) (holding that employee
discussions about scheduling changes were concerted even though they had no expressed object of initiating group
action).
13
Meyers I, 268 NLRB at 497; see also Tampa Tribune, 346 NLRB 369, 371 (2006) (holding that employee who
raised concern of favoritism was speaking “only for himself” and there was no evidence that his coworkers even
shared his belief that favoritism existed; his complaint was a personal gripe, not protected concerted activity).
14
See Mushroom Transp. Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964).
15
See Meyers I, 268 NLRB at 498-99.
16
Advice Memorandum, Buel, Inc., Case No. 11-CA-22936, 2011 WL 3793671(July 28, 2011) (citing Meyers II,
281 NLRB at 886); see also Mem. OM 12-31 at 32 (discussing Buel).
17
29 U.S.C. Section 157.
11
4
protected, an employee must link his or her complaint to some term or condition of
employment.18
Once the Board determines that conduct is both concerted and protected, the Board
then looks to determine whether the conduct has lost its protection. In social media cases, the
OGC has tended to look beyond obscene, profane or derogatory language in online
communications, focusing on its interpretation of the motivation behind the communication.
Specifically, if an employer asserts that an employee engaged in misconduct during the course
of otherwise protected activity, the Board looks to the factors set out in either Atlantic Steel19 or
Jefferson Standard.20 While Advice has explained that “Atlantic Steel is generally applied to an
employee who has made public outbursts against a supervisor, Jefferson Standard is usually
applied where an employee has made allegedly disparaging comments about an employer or its
product in the context of appeals to outside or third parties.”21 The Atlantic Steel factors are
used to determine whether the employee’s outburst became “so opprobrious” as to lose
protection under the Act, considering: (1) the place of the discussion, (2) the subject matter of
the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in
any way, provoked by an unfair labor practice committed by the employer.22 In contrast, under
Jefferson Standard, the inquiry is whether the communication is related to an ongoing labor
dispute and whether it is “so disloyal, reckless or maliciously untrue as to lose the Act’s
protection.”23
For example, statements have been found to be so disloyal as to lose the
protection of the Act where they are made “at a critical time in the initiation of” the Company’s
business and where they constitute “a sharp, public, disparaging attack upon the quality of the
company’s product and its business practices, in a manner reasonably calculated to harm the
18
The Board has specifically recognized that employee complaints regarding supervisory treatment, attitude and
performance are protected because they relate to terms and conditions of employment. See Advice Memorandum,
American Med. Response of Conn., Inc., Case No. 34-CA-12576 at 9 n.16 (October 5, 2010) (relying on Datwyler
Rubber & Plastics, Inc., 350 NLRB 669 (2007) and Groves Truck & Trailer, 281 NLRB 1194 (1986) for the
proposition that “[i]t is well established that the protest of supervisory actions is protected conduct under Section
7.”)
19
245 NLRB 814, 816 (1979) (upholding an arbitrator’s decision denying a grievance over an employee’s discharge
after he used an obscenity to address a supervisor on the production floor, following a question concerning working
conditions and agreeing that such conduct was not protected in the same way that spontaneous outbursts made
during the heat of a formal grievance procedure or during contract negotiations might be and recognizing that “even
an employee who is engaged in concerted protected activity can, by opprobrious conduct, lose the protection of the
Act.”).
20
NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953).
21
See Mem. OM 11-74 at 6.
22
See 245 NLRB at 816.
23
See Mem. OM 11-74 at 6.
5
company’s reputation and reduce its income.”24 The Board has been careful, however, to “to
distinguish between disparagement of an employer’s product and the airing of what may be
highly sensitive issues.”25 The Board has held, therefore, that to lose the Act’s protection for
disloyalty, the employee’s public criticism must evidence ‘a malicious motive.’”26 Statements are
“maliciously untrue” where they are made with knowledge of their falsity or with “reckless
disregard for their truth or falsity” and the Board has recognized that “[w]here an employee
relays in good faith what he or she has been told by another employee, reasonably believing
that report to be true, the fact that the report may have been inaccurate does not remove the
relayed remark from the protection of the Act.”27 Using these guidelines, unless a protected
concerted post is so opprobrious or so disloyal as to strip it of Section 7 protection, the posting
will be deemed protected concerted activity for which the employer may not discipline.28
B.
How have these Standards Been Applied in Social Media Cases?
1.
Social Media Cases Found to Involve Protected Concerted Activity
24
Jefferson Standard, 346 U.S. at 471.
Valley Hosp. Med. Center, Inc., 351 NLRB 1250, 1252 (2007) (citing Professional Porter & Window Cleaning
Co., 263 NLRB 136, 139 (1982), aff’d. mem. 742 F.2d 1438 (2nd Cir. 1983)).
26
Id. (citing Richboro Community Mental Health Council, 242 NLRB 1267, 1268 (1979)).
27
Id. at 1252-53 (citing KBO, Inc., 315 NLRB 570, 571 (1994), enfd. mem. 96 F.3d 1448 (6th Cir. 1996)).
28
In Mem. OM 12-31, the OGC recognized that there is a conflict in the standard used to determine whether
comments have lost their protection from the Act for social media posts. The OGC explained that generally Atlantic
Steel is used “to analyze communications between employees and supervisors, [ ] specifically focuses on whether
the communications would undermine shop discipline,” and involves the consideration of four factors in
determining whether “employee conduct is so ‘opprobrious’ as to lose the protection of the Act.” Id. at 24. In
contrast, however, the Jefferson Standard test was established “to analyze handbills that were part of an intentional
appeal to the general public” and has been used to test whether “employee communications that are intended to
appeal directly to third parties, with an eye toward whether those communications reference a labor dispute and are
so disparaging of the employer or its product so as to lose the protection of the Act.” Id. Concluding that a
Facebook conversation is more analogous to a conversation among employees that is overheard by third parties than
it is to an intentional dissemination of employer information to the public, the OGC has indicated that Atlantic Steel
is the more appropriate test for social media posts. On the other hand, the OGC also noted that the Atlantic Steel
analysis does not consider the impact of disparaging remarks to third parties that often exist with social media posts.
Therefore, the OGC has fashioned a modified, hybrid Atlantic Steel/Jefferson Standard test to determine whether
social media posts lose their protection under the Act. Id. Under this new hybrid test, the OGC considered whether
Facebook postings concerning a bad manager lost their protection under the Act either under the Atlantic Steel
factors or because of their potential impact on the employer’s reputation and business in that they were either
defamatory or otherwise so disparaging under Jefferson Standard. Id. at 25. The reality is that whether using the
Atlantic Steel, Jefferson Standard or new hybrid test, it seems unlikely that there will be many cases where the
Board will determine that otherwise concerted protected activity has lost its protection of the Act. See e.g., Plaza
Auto Center, Inc., 355 NLRB No. 85 (2010) (holding that employee’s conduct was not so outrageous as to lose the
protection of the Act, despite the fact that during a confrontation with his supervisor over the employer’s break
policies, he referred to his supervisor as a “f’ing mother f’ing,” “an a**hole,” told him he was stupid and that
everyone talked behind his back, and that if he was fired, the employer “would regret it” because the outburst was
unaccompanied by insubordination, physical contact, threatening gestures, or threat of physical harm). But see
Plaza Auto Center v. NLRB, 664 F.3d 286 (9th Cir. 2011), refusing to enforce 355 NLRB No. 85 in part and
remanding case to the Board to rebalance the Atlantic Standard factors.
25
6
In Bay Sys Technologies,29 the Board granted a default judgment against the employer,
finding that it violated the Act by discharging an employee for engaging in protected concerted
activity. According to the complaint, in Bay Sys, an employee had posted comments to other
employees on Facebook “so they could concertedly complain about the Respondent [employer]
not having issued their paychecks on time.”30 A week later, the Facebook conversation was
published in a local newspaper.31 The employer responded by expressing disappointment that
employees took their complaints to the newspaper rather than raising them internally, informing
employees that their complaints breached their nondisclosure agreements, threatening them
with legal action for having engaged in protected concerted activities, implying that they would
be discharged unless they issued written explanations about their protected concerted activities
both to other employees and to the newspaper, and threatening that their supervisors would
consider their protected concerted activities in their performance evaluations.32 A few days
later, the employer then questioned employees about the postings, and thereafter discharged
the employee who made the initial Facebook post. The Board held that the employer violated
the Act in discharging the employee for engaging in protected concerted activity and to
discourage other employees from doing the same.
Additionally, in Hispanics United of Buffalo,33 an Administrative Law Judge (“ALJ”) found
that the employer, a not-for-profit organization that provided social services to economically
disadvantaged clients, unlawfully discharged five employees based on their Facebook posts.
The Facebook conversation was initiated by employee Mariana Cole-Rivera regarding text
messages she had received from another employee, Lydia Cruz-Moore, critical of the job
performance of Cole-Rivera and other employees, and Cruz-Moore’s statement to Cole-Rivera
that she intended to raise her concerns with management. Specifically, Cole-Rivera posted on
her Facebook page, “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB
I about had it! My fellow coworkers how do u feel?”34
Four coworkers responded, with
comments such as the following: “What the f… Try doing my job I have 5 programs”; “What the
Hell, we don’t have a life as is, What else can we do???”; and “Tell her to come do mt [my]
29
Bay Sys Techs., LLC, 357 NLRB No. 28, 2011 WL 3318495 (2011). This case was not reported in either Mem.
OM 11-74 or Mem. OM 12-31.
30
Id. at *2.
31
Id.
32
Id.
33
Hispanics United of Buffalo, Inc., Case No. 3-CA-27872, 2011 WL 3894520 (NLRB Div. of Judges Sept. 2,
2011); see also Mem. OM 11-74 at 1 (discussing Hispanics United of Buffalo).
34
Id.
7
fucking job n c if I don’t do enough, this is just dum”.35 Deeming these posts to be bullying and
harassment, the employer terminated the five employees.
In finding that the conversation constituted protected concerted activity, the ALJ found it
insignificant that the employees were simply discussing these concerns, and not trying to
change their working conditions.36 Rather, he found the posts to be concerted activity because
they represented “a first step towards taking group action to defend themselves against the
accusations they could reasonably believe Cruz-Moore was going to make to management.”37
By terminating these employees, the employer therefore prevented the employees “from taking
any further group action.”38
Moreover, the fact that all five were terminated together was
significant, as it indicated that the employer “viewed the five as a group and that their activity
was concerted.”39 The ALJ then proceeded to conclude that the postings did not lose their
protection under the Atlantic Steel four-factor test because they were not made while the
employees were at work or during working hours (factor 1)40, the subject matter of the postings
related to a coworker’s criticisms of employee job performance, a matter that the employees
had a right to discuss (factor 2), there were no outbursts (factor 3) and although the postings
were not provoked (factor 4), the ALJ found that this factor was not relevant to the case. The
ALJ also determined that the employer could not show that the comments actually violated any
35
Id.
Id. (discussing, inter alia, Aroostook, 317 NLRB at 220 and Parexel Int’l, LLC, 356 NLRB No. 82 (2011)).
37
Id. See also Mem. OM 12-31 at 5 (finding employee’s Facebook posts concerning the change in her job
assignment constituted protected concerted activity where, in response to her posts, coworkers responded on
Facebook, some echoing her frustration with the employer’s treatment of employees and one suggesting the taking
of concerted activity through the filing of a class action lawsuit); id. at 20-22 (finding employee’s Facebook posts
concerning the manner in which management had handled a promotion decision constituted protected concerted
activity where three coworker Facebook “friends” responded to the post, complaining about mismanagement and
suggested group action by commenting “it would be pretty funny if all of the good employees actually quit” to
which the initial employee responded “this wasn’t over by a long shot”).
38
Id.
39
Id. (citing Whittaker Corp., 289 NLRB 933 (1988)).
40
Given the Board’s decision in Guard Publishing Co., d/b/a The Register-Guard (Register Guard I), 351 NLRB
1110 (2007), enf. granted in part and remanded on other grounds, Guard Publishing Company v. NLRB, 571 F.3d
53 (D.C. Cir. 2009) that employers have a “basic property right” to “regulate and restrict employee use of company
property” was a deeply divided decision, we might have expected the OGC to use these social media cases to call for
reconsideration of Register Guard I’s holding; however, to date, none of these social media cases have dealt with the
issue of whether postings made from workplace computers are nevertheless protected. Moreover, as Advice has
interpreted the first factor in Atlantic Standard to consider whether postings have lost their protection, and that
factor specifically considers whether the postings were made on work time or while at work, it seems that Register
Guard I’s finding that an employer may prohibit employee use of its email system is still good law. Indeed,
significantly, Advice considered and upheld a portion of an employer’s Solicitation/Distribution policy which stated
that the “[u]se of the electronic mail system for solicitation is strictly prohibited.” American Med. Response of
Conn, Case No. 34-CA-12576, at 14 (citing Register Guard I, 351 NLRB at 1116). This policy was found to be
lawful under Register Guard I’s holding that employees have no statutory right to use employers’ e-mail for Section
7 matters, and an employer “’may lawfully bar employees’ non-work-related use of its email system, unless the
employer acts in a manner that discriminates against Section 7 activity.” Id.
36
8
of its lawful workplace rules or policies, as there was nothing in the Facebook comments that
constituted harassment.
Similarly in American Medical Response of Connecticut,41 Dawnmarie Souza, a
paramedic with American Medical Response (“AMR”), had requested the presence of a union
representative while she prepared an incident report concerning a patient complaint, but her
supervisor denied her request. Souza then posted on her Facebook page, “Looks like I’m
getting some time off. Love how the company allows a 17 [AMR code for a psychiatric patient]
to be a supervisor.”42 AMR coworkers responded to Souza’s Facebook posting with supportive
comments, and an online conversation between these coworkers and Souza ensued during
which Souza referred to the supervisor as a “scumbag” and a “dick”.43 Souza was suspended,
and later terminated, for her postings.44
In recommending that a Complaint issue, Advice concluded that Souza’s termination
violated the Act.45 First, it determined that the employer wrongfully denied her request to have a
union representative present while she completed the incident report.46
It also summarily
concluded that the discussion of supervisory actions over Facebook was protected activity.47 As
to the remaining question, whether her language caused her to lose the protection of the Act,
Advice found that applying the Atlantic Steel factors, the name-calling on Facebook did not
interrupt the work of any employees because it occurred outside the workplace and during nonworking time (factor 1), it involved protected concerted activity (discussion of supervisory action)
(factor 2), it “was not accompanied by any verbal or physical threats” and was not as egregious
as other name-calling that the Board has found protected in the past (factor 3), and was, in fact,
provoked by the employer’s unlawful refusal to provide her with a union representative (factor
4).48
Based on these factors, Advice concluded that Souza’s comments did not lose the
protection of the Act.
41
Case No. 34-CA-12576; see also Mem. OM 11-74 at 3 (discussing American Med. Response of Conn., Inc.).
Id.
43
Id.
44
Id.
45
The case settled in February 2011 before it could advance to a hearing before an ALJ.
46
American Med. Response of Conn., Inc., Case No. 34-CA-12576 at 6-8 (citing NLRB v. J. Weingarten, Inc., 420
U.S. 251, 260-61 (1975)).
47
Id. at 9 n.16 (relying on Datwyler Rubber & Plastics, Inc., 350 NLRB 669 (2007) and Groves Truck & Trailer,
281 NLRB 1194 (1986) for the proposition that “[i]t is well established that the protest of supervisory actions is
protected conduct under Section 7.”)
48
Id. at 9-10 (noting that terms such as “liar and b*tch”, “f***ing son of a bitch” and “egotistical f***” had been
found protected, citing Stanford Hotel, 344 NLRB 558-59 (2005) and Alcoa Inc., 352 NLRB 1222, 1226 (2008)).
42
9
Likewise in Triple Play Sports Bar and Grille,49 an ALJ determined that employees’
Facebook posts regarding the employer’s tax withholding practices were protected concerted
activity, despite the derogatory language used in those posts.
In that case, a group of
employees had discussed (in person) the fact that they all owed state taxes based on their
income from the employer. The employer was aware of employees’ concern with the issue, and
a staff meeting had been scheduled to discuss the issue.
Before that meeting occurred,
however, some employees engaged in a Facebook conversation about the tax issue, prompted
by a comment posted by a former employee, which stated, “Maybe someone should do the
owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork
correctly!!! Now I OWE money...Wtf!!!!”50
The online conversation that followed this post
included plenty of profanity and insults directed at one of the employer’s owners. In response to
this online conversation, two employees were discharged, one for her Facebook comment in
response to the former employee’s post and the other for posting “Like” on Facebook in
response to this same post.51 The ALJ found the Facebook conversation to involve protected
concerted activity. First, she found that it was “beyond question that issues related to wages,
including the tax treatment of earnings” were directly related to the employment relationship and
a basis for Section 7 concerted activity.52 Additionally, she found the Facebook discussion to be
a clear example of concerted activity, since it “was part of a sequence of events, including other,
face-to-face employee conversations, all concerned with employees’ complaints regarding
Respondents’ tax treatment of their earnings.”53 Also important to the ALJ’s determination that
the discussion was “part of an ongoing sequence of events” was the fact that the restaurant
owners were aware of the employees’ concerns and had scheduled a meeting to discuss
them.54 Significantly, the ALJ determined that even the simple act of “liking” a Facebook
comment constituted “participation in the discussion that was sufficiently meaningful as to rise to
the level of concerted activity.”55 Furthermore, the ALJ found that the employees’ statements,
49
Case No. 34-CA-12915, 2012 WL 76862 (NLRB Div. of Judges, Jan. 3, 2012); see also Mem. OM 11-74 at 7
(discussing Triple Play Sports Bar and Grille).
50
See id.
51
See id.
52
See id. (citing Coram Pond Diner, 248 NLRB 1158, 1159-60, 62 (1980)).
53
Id. (noting that “[i]t is well-settled that concerted activity ‘encompasses those circumstances where individual
employees seek to initiate or to induce or to prepare for group action,’” citing Worldmark by Wyndham, 357 NLRB
No. 104 at 2 (2011)).
54
See id.
55
See id. (explaining that by selecting “Like,” “so that the words ‘Vincent VinnyCenz Spinella . . . like[s] this”
appeared on the account, constituted, in the context of Facebook communications, an assent to the comments being
made, and a meaningful contribution to the discussion,” and that, moreover, the determination of whether an
employee’s participation in a conversation constitutes protected concerted activity has never been “contingent upon
their level of engagement or enthusiasm,” but only required the participant to be a speaker or a listener).
10
including the use of the word “a**hole,” were not sufficient or so disloyal as to lose protection of
the Act by virtue of their profane or insulting nature, relying on cases in which more offensive
language had been found protected.56 Lastly, relying on the Atlantic Steel test, the ALJ found
that the factors weighed in favor of finding that the statements did not lose their protection of the
Act because they were made on Facebook (outside of the workplace and on employees’
nonworking time), the subject matter of the posting involved protected concerted activity, and
the outburst was not in person and thus, was not a direct confrontation, and it did not involve
any threats, insubordination or physically intimidating behavior.57
Knauz BMW58 involved two different Facebook posts, one which the ALJ concluded
involved protected activity, and one which did not. Specifically, Robert Becker, a salesman at
the BMW dealership, posted photographs of two events to Facebook on the same day. The first
series of photographs captured his coworkers posing at a sales event with the inexpensive food
(i.e., hot dogs, cookies and chips) that the dealership was serving.
The second series of
photographs captured a Land Rover from the sister dealership that had been driven into a pond.
The ALJ found Becker’s post criticizing the quality of the food the employer chose to serve at a
major sales event to be protected activity, noting that the issue was one that could affect
Becker’s commissions (a term and condition of employment), and relying on the earlier sales
meeting and comments before the posting, decided that the employee’s individual posting was
concerted to the extent that it stemmed from or logically grew out of the prior concerted activity
even though he complained on Facebook with no further input from coworkers.59 Furthermore,
in deciding that the employee’s sarcastic and mocking comments did not rise to the level of
disparagement necessary to lose the protection of the Act, the ALJ stated: “Unpleasantries
uttered in the course of otherwise protected concerted activity does not strip away the Act’s
protection.”60
56
Id. (citing, inter alia, Tampa Tribune, 351 NLRB at 1324-25 and Alcoa Inc., 352 NLRB 1222, 1226 (2008)).
Significantly, the ALJ rejected that the statements should be considered under the Jefferson Standard disloyalty
test, opining that calling someone an “a**hole” is not a statement of fact that can be defamatory so as to lose the
protection of the Act and rejecting the Jefferson Standard’s applicability to the instant case because unlike a
statement to the public, a Facebook page is not generally accessible to the public. However, the ALJ went on to find
that even under the Jefferson Standard test, the Facebook posts were protected because even if they constituted
public criticism, they were not made at a critical time in the initiation of the company’s business, did not attack the
quality of the employer’s service and were not maliciously untrue.
58
Case No. 13-CA-46452, 2011 WL 4499437 (NLRB Div. of Judges, Sept. 28, 2011). This decision is being
appealed to the NLRB by the NLRB’s Acting General Counsel. See also Mem. OM 11-74 at 4 (discussing Knauz
BMW).
59
Id.
60
Id. (quoting Timekeeping Sys., Inc., 323 NLRB 244, 249 (1997) and relying on US Postal Service, 241 NLRB 389
(1979) (where employees’ comments calling supervisors “a**holes” did not lose the protection of the Act) and
57
11
2.
Social Media Cases Finding No Protected Concerted Activity, but
Rather Conduct for Which the Employer Legitimately Disciplined.
The OGC’s Memoranda support the notion that the Board is willing to draw certain limits
as to what types of social media communications will be considered protected concerted
activity, even if it is unclear at this point where exactly those limits fall.
With regard to what is
considered concerted activity, the Board’s decisions suggest that if they do not arise out of a
previous conversation and/or generate an online discussion amongst other employees, they
may not be protected. More importantly, however, many of Advice’s decisions seem to turn on
whether a) any coworkers actually responded to the online post and b) the nature of any
coworker response.
For example, in Frito-Lay, Inc.,61 Advice dismissed a charge by an employee discharged
for posting a criticism of a supervisor on his Facebook page, stating that he was “a hair away
from setting it off in that B*TCH,”62 noting that although the postings concerned his terms and
conditions of employment (i.e. supervisory treatment) and thus was protected, the employee
was not seeking to induce group action, but rather in his own words, he was just “venting,” the
post was not an outgrowth of prior employee meetings, and no coworkers responded to the
post. Thus, Advice concluded the post did no constitute concerted activity.63
Similarly, in JT’s Porch Saloon & Eatery, Ltd.,64 Advice found that a bartender was
lawfully fired after he complained in an online conversation with his step-sister (who was not an
employee) that he hadn’t had a raise in five years and that he was doing the waitresses’ work
without tips.
During that same online conversation, he also referred to the employer’s
customers as “rednecks” and posted that he “hoped they choked on glass as they drove home
drunk.”65
In recommending dismissal of the charge, Advice concluded that although the
bartender’s comments addressed protected subjects of employment (i.e. wages and tips) and
he had had a conversation with a coworker several months earlier complaining about the tip
Groves Truck & Trailer, 281 NLRB 1194 (1986) (calling the company’s CEO a cheap son of a b*tch did not lose
the protection of the Act). The photographs of the Land Rover incident , on the other hand, were neither protected
nor concerted, as they were posted “apparently as a lark, without any discussion with any other employee,” and were
not connected to any term or condition of Becker’s employment. Thus, Becker could be fired for his posting
regarding the Land Rover incident but not for his posting concerning the sales event.
61
Advice Memorandum, Case No. 36-CA-010882 (Sept. 17, 2011). See also Mem. OM 12-31 at 34 (discussing
Frito-Lay). Because the conduct was found not to be concerted, Advice did not reach the issue of whether the
employee’s statement that he was going to “set it off” suggested violence so as to lose its protection from the Act.
62
Id.
63
Id.
64
Advice Memorandum, Case No. 13-CA-46689, 2011 WL 2960964 (July 7, 2011); see also OM 11-74 at 12
(discussing JT’s Porch Saloon & Eatery, Ltd).
65
Id.
12
policy, “he did not discuss his Facebook posting with any of his fellow employees either before
or after he wrote it, and none of his coworkers responded to the posting.” Furthermore, Advice
noted that as “[t]here had been no employee meetings or any attempt to initiate group action
with regard to the tipping policy or the awarding of raises,” and “no effort to take the bartenders’
complaints about these matters to management,” it did not appear that posting had grown out of
the earlier conversation with his coworker.66 Thus, while his comments were protected, they
were not concerted and the employer’s decision to terminate the bartender for these posts was
not unlawful.
Rural Metro67 involved a similar analysis. In that case, after a state senator announced
via his Facebook page that four Indiana fire departments had received federal grants, an
employee dispatcher for an Indiana provider of medical transportation and fire protection
services posted a lengthy speech to the senator’s wall, complaining about the lack of resources
and low wages at her “cheap contract company.”68 As evidence of Rural Metro’s need for grant
money, the employee posted that the company had only two trucks for a large area, and
described an incident where an individual died because the crew did not reach a cardiac arrest
victim in time, and the first responders did not know CPR.69 Advice found that although the
comments related to the employee’s terms and conditions of employment, they did not
constitute concerted activity because she did not discuss the posting with any other employee
(including her husband who was also a coworker), there had been no employee meetings or
attempts to take group action regarding wages or other terms and conditions of employment,
and she was not attempting to take complaints to management.70 Rather, as the employee
attested, she simply wanted to make the Senator aware that she disagreed with how emergency
medical services were handled in Indiana and admitted that she did not think that the senator
could help her with her wage issue.71
Buel, Inc.
72
provides yet another example of protected conduct that was deemed not
concerted. In Buel, the employee, a truck driver, had travelled from Kansas to Wyoming to
make a delivery, but found when he arrived at his destination that the roads were closed due to
66
Id.
Advice Memorandum, Case No. 25-CA-31802, 2011 WL 2960970 (June 29, 2011); see also Mem. OM 11-74 at
13 (discussing Rural Metro).
68
Id.
69
Id.
70
Id.
71
Id.
72
Advice Memorandum, Case No. 11-CA-22936, 2011 WL 3793671; see also Mem. OM 12-31 at 32 (discussing
Buel).
67
13
snow.
After calling the employer to report his situation and being unable to reach the
dispatcher, he posted on Facebook a comment expressing his frustration at finding the road
closed, at being stuck in Wyoming in the cold without his wife/girlfriend, and at not being able to
reach the dispatcher.73 Advice concluded that these posts were not concerted because the
employee had not discussed them with any of his fellow employees, and because none of his
coworkers responded to his posts.74 According to Advice, the employee was not seeking to
induce group action, but rather “simply expressing his own frustration and boredom while
stranded by the weather, by griping about his inability to reach the on-call dispatcher.”75
Children’s National Medical Center76 involved a similar analysis.
In that case, the
employee, a respiratory therapist, posted a message on Facebook about her coworker while
riding in the back of an ambulance with him, stating: “REALLY!!! Must you suck your teeth every
30 seconds.
It is driving me nuts.”77
After two of her non-employee Facebook friends
responded with supporting comments, she posted:
senseless with a ventilator. (sic)
them. UGH!!!”
78
“Actually they are about to get, beat
It’s in the back of an ambulance and I can’t get away from
In a separate incident, to express her frustration over the lack of respect a
doctor had shown her, the employee also posted: “UGH!!!!!! This night sucks. Can I just say!!!!
(sic) Apparently RT’s don’t know what they are talking about again.”79 Advice concluded that
none of these posts constituted protected concerted activity. The first two did not concern the
terms and conditions of employment, but were rather simply “complain[ts] about the irritating
sounds [the employee’s] co-worker was making.”80 As for the third, even if it did concern a term
or condition of employment, it too involved merely the airing of a personal complaint; the
employee did not discuss the post with any of her coworkers and none of them responded to it.
Furthermore, other decisions illustrate that even if an online comment relates to the
terms and conditions of employment and does generate a response from, or online conversation
among, coworkers, it still may not be considered concerted activity if it is not intended to initiate
or induce group action, but rather is an expression of an individual gripe, and coworkers
73
Id. at 1-2.
Id. at 3-4.
75
Id. at 4.
76
Advice Memorandum, Case No. 05-CA-036658 (Nov. 14, 2011); see also Mem. OM 12-31 at 30 (discussing
Children’s Nat’l Med. Center).
77
Id. at 1.
78
Id. at 1-2.
79
Id.
80
Id.
74
14
comments in response to the posting treat it as such. For example, in Wal-Mart,81 an employee
upset with an interaction with an assistant manager posted on Facebook, “Wuck Falmart! I
swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots
are about to quit!”82 Two co-workers responded, one expressing support and one asking “What
the hell happens after four that gets u so wound up??? Lol”.83 The employee answered that the
Assistant Manager was “being a super mega puta” and “chewed [him] out” for merchandise
being in the wrong place. “I’m talking to [Store Manager] about this shit cuz if it doesn’t change
walmart can kiss my royal white a**!”84 While two other coworkers responded to this post
expressing sympathy, with one making a “hang in there” type of remark, Advice concluded that
the complaining employee’s postings were simply “an expression of an individual gripe,” as they
gave no indication that they sought to induce group action or were a “logical outgrowth of prior
group activity.”85 Advice further explained that although the posting provoked responses from
coworkers, none of the coworkers’ responses suggested that they had interpreted the
employee’s posts as anything but an expression of his frustration regarding an individual dispute
with the manager for which he could lawfully be disciplined.86
Sagepoint Financial87 provides another example of Facebook comments that Advice
found to be mere expressions of individual gripes and not concerted activity. The employee in
Sagepoint frequently posted on Facebook complaints about conflicts with his coworkers and
manager. Despite being reprimanded by the employer for these posts, he continued to post
inappropriate comments, including statements that he “hate[d]” the management,” and that his
81
Advice Memorandum, Case No. 17-CA-25030, 2011 WL 3223852; see also Mem. OM 11-74 at 15 (discussing
Wal-Mart).
82
Id.
83
Id.
84
Id.
85
Advice’s conclusion in this regard is peculiar. It would seem that the employee’s statement that “if this tyranny
doesn’t end in this store they are about to get a wakeup call because lots are about to quit!” would be perceived as a
collective action encouraged by the employee and to be taken in response to the supervisor’s treatment. Compare
with Mem. OM 12-31 at 5 (finding employee’s Facebook posts concerning the change in her job assignment
constituted protected concerted activity where, in response to her posts, coworkers responded on Facebook, some
echoing her frustration with the employer’s treatment of employees and one suggesting the taking of concerted
activity through the filing of a class action lawsuit). And see id. at 20-22 (finding employee’s Facebook posts
concerning the manner in which management had handled a promotion decision constituted protected concerted
activity where three coworker Facebook “friends” responded to the post, complaining about mismanagement and
suggested group action by commenting “it would be pretty funny if all of the good employees actually quit” to
which the initial employee responded “this wasn’t over by a long shot.”)
86
Id. Because Advice found that the postings were not concerted, it declined to consider whether they were so
“opprobrious” as to lose the protection of the Act.
87
Advice Memorandum, Case No. 28-CA-23441, 2011 WL 3793672 (Aug. 9, 2011). This case was not reported in
either Mem. OM 11-74 or Mem. OM 12-31.
15
manager was a “b*tch” and was having affairs with his coworkers.88
After a coworker
complained to management about the posts, the employer again advised the employee to stop
his Facebook posts; the employee, however, responded that he needed Facebook as an outlet
to “vent,” and continued to post comments derogatory of his manager, including what he
perceived to be preferential treatment of two of his coworkers and again, insinuating that she
was having an affair with his coworker.89 Following these posts, the employee was terminated
and thereafter filed a charge. Recommending dismissal of the charge, Advice found that the
employee’s posts were not concerted, but rather were “made solely on his own behalf and were
not designed to advance any cause other than his own.”90 Moreover, there was no evidence of
group activity; although coworkers responded to some of his posts, they did so “only to express
amusement or sympathy but not because they shared a common concern about the effects of
the supervisor’s conduct upon their terms and conditions of employment.”91 Thus, because the
employee’s comments constituted “mere griping,” his discharge for these comments was
lawful.92
Similarly in Martin House,93 an employee’s Facebook posts referring to her employer’s
mentally ill clients were found to be unprotected due to a combination of the above factors. In
that case, the employee was working the overnight shift at a residential facility for homeless
people when she posted: “Spooky is overnight, third floor, alone in a mental institution, btw Im
not a client, not yet anyway.”94 She also posted, “My dear client ms 1 is cracking up at my post,
I don’t know if she’s laughing at me, with me or at her voices, not that it matters, good to
laugh.”95 While two individuals responded to these postings, neither were employees.
Advice
found that these postings were not protected because they did not concern the terms and
conditions of her employment – the employee was “merely communicating with her personal
88
Id.
Id.
90
Id.
91
Id. See also Advice Memorandum, Copiah Bank, Case No. 15-CA-061204 (Dec. 1, 2011) (recommending
dismissal of the charge and finding that the employee’s Facebook posting that another employee was a “narc” that
merely solicited a response from a coworker of “[y]ou talking about me?” was insufficient to establish concerted
activity); and see Advice Memorandum, Helser Indus., Case No. 19-CA-33145 (Aug. 22, 2011) (holding that it was
clear from the coworker’s online response to the employee’s Facebook post that the coworker believed the
employee’s complaint involved merely a personal gripe); Advice Memorandum, Intermountain Specialized Abuse
Treatment Center, Case No. 27-CA-065577 (Dec. 6, 2011) (for same result).
92
Sagepoint Financial, Case No. 28-CA-23411, at 5.
93
Advice Memorandum, Case No. 34-CA-12950, 2011 WL 3223853 (July 19, 2011); see also Mem. OM 11-74 at
14 (discussing Martin House).
94
Id.
95
Id.
89
16
friends about what was happening on her shift” – and there was no evidence of concerted
activity, as she did not discuss her posts with any coworkers, and none responded to them.96
In social media cases, employers must also determine whether the online discussion or
posting concerns terms or conditions of employment. In certain cases, it may be relatively clear
that a post does not fall into that category, and thus, it is not protected activity. For example, in
Arizona Daily Star,97 Advice found that an employer properly discharged a crime and public
safety beat reporter for inappropriate and unprofessional postings on Twitter, specifically a
series of sarcastic comments related to his beat, such as: “You stay homicidal, Tucson, See
Star Net for the bloody deets”; “What?!?! No overnight homicide? WTF? You’re slacking
Tucson”; “I’d root for daily death if it always happened in close proximity to Gus Balon’s”; and
“My discovery of the Red Zone channel is like an adolescent boy’s discovery of his… let’s just
hope I don’t end up going blind.”98 Advice recommended dismissal of the charge, finding that
the tweets were not protected as they did not relate to the terms and conditions of the reporter’s
employment.99
Similarly, in MONOC,100 three employees of a medical services provider, including the
Union President, were disciplined for disparaging comments “regarding patients and patient
care” made on the Union President’s Facebook wall; in particular, for comments that indicated
they “might withhold care if they were personally offended by the patients.”101 Although these
same employees had written other Facebook comments that clearly involved the terms and
conditions of employment, such as comments regarding ongoing labor disputes, and were thus
clearly protected activity, the specific comments for which they were disciplined were completely
unrelated to those protected postings, and unrelated to any other term or condition of
96
Id.
Advice Memorandum, Case No. 28-CA-23267, 2011 WL 1825089 (Apr. 21, 2011); see also Mem. OM 11-74 at
10 (discussing Arizona Daily Star).
98
Id.
99
Id. In reaching this decision, Advice noted that the manager may have made unlawful statements in warning the
reporter not to air his grievances or comment about the employer in a public forum and by his termination letter
which referred to the fact he was told to refrain from using derogatory comments in any social media forums that
damage the goodwill of the company. The reporter’s discharge was not unlawful, however, because he was
discharged not for an unlawful rule but rather because he posted inappropriate and offensive posts unrelated to his
employment.
100
Advice Memorandum, Monmouth Ocean Hosp. Serv. Corp. (MONOC), Case Nos. 22-CA-29008, 22-CA-29083,
22-CA-29084, and 22-CA-29234, 2010 WL 6162573 (May 5, 2010).
101
Id.
97
17
employment. Thus, their discipline did not violate the Act because their comments were not
protected.102
III.
LIVING WITH THE OGC’s MEMORANDA ON SOCIAL MEDIA: PRACTICAL ADVICE
FOR EMPLOYERS
A.
Deciding When a Posting is Protected and When to Discipline
Step 1: Decide whether the conduct is concerted
Like other cases involving considerations of protected concerted activity, employers
confronting potential discipline of employees in response to social media postings must first
determine whether the posting was concerted. As explained above, generally the Board has
found that an action taken by an employee “with or on the authority of other employees, and not
solely by or on behalf of the employee himself,” is “concerted activity” protected under Section 7
of the Act.103 Although the OGC Memoranda discuss the factors that will be considered in
determining whether conduct is concerted, as described above, they have not always been so
clearly applied in social media cases. What then should we, as practitioners, advise employers
to do when confronted with a decision as to whether or not to discipline an employee in
response to his or her posting on some social media platform? The following factors may assist
employers in determining when such conduct is concerted:
102
In addition to deciding whether social media posts constitute concerted activity, in a few cases, Advice has also
considered challenges to the way in which employers obtained the information regarding an employee’s social
media activities. In these cases, Advice has indicated that it will apply its general standards on surveillance to the
context of social media. In MONOC, for instance, Advice concluded that the employer had had not created an
impression of surveillance given that: it obtained the Facebook postings from other employees, without soliciting
them and clearly informed the three involved employees of this; the Union President on whose Facebook page the
discussion took place had restricted her Facebook page such that the employer itself would not be able to access it;
and the employer referred to the comments as having been “brought to” its attention in the disciplinary letters it sent
to the employees. Id. at 6. Likewise, in Buel, Inc., Advice also rejected the claim that the employer had unlawfully
created an impression of surveillance, finding not only that the comments were not subject to unlawful surveillance
because they were not protected concerted activity, but also that there was no unlawful surveillance since the truck
driver had essentially invited his supervisor to view his Facebook page by “friending” her. Case No. 11-CA-22936
at 4-5 (citing Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 960-61 (2004) for the proposition that “there can be
no unlawful surveillance if the employer’s agent was invited to observe”); see also Advice Memorandum, Public
Service Credit Union, Case No. 27-CA-21923 (Nov. 1, 2011) (finding no unlawful surveillance where a coworker
voluntarily provided the employer with a copy of the Facebook posting at issue and no unlawful impression of
surveillance was created even though the employer refused to reveal which employee was the employer’s source of
receiving the posting). On the other hand, where supervisors gain access to employees’ Facebook pages by coercion
or for the sole purpose of monitoring what employees are posting or gain access to postings by directing another
employee to acquire it and report back to the employer, such conduct could be unlawful. These decisions seem
consistent with other Board precedent as we know it – certainly a supervisor cannot force his way into a union
meeting unattended or direct an employee to go to a union meeting and report back to him what occurred at the
meeting. However, if employees voluntarily report to a supervisor what happened at a union meeting or what
occurred on Facebook that does not constitute unlawful surveillance.
103
Meyers I, 268 NLRB at 497.
18
1.
Does the posting suggest any collective action should be taken in response to the
employee’s complaint? Whether or not a posting calls for collective action should be
interpreted liberally since such could be engaging in a number of different actions, i.e.
complaining to management, a newspaper, a lawyer, a union or just about any other
source. A call for collective action could also be construed to include merely scheduling
a follow up discussion or meeting with coworkers to discuss the subject of the posting.
2.
Does the posting reference any prior conversations about this same subject matter? Is
there any evidence that the subject of the posting has been previously raised by
employees or discussed among the employees and that the posting is an extension of
that previous discussion?
3.
Are of any of the employee’s coworkers online ‘”friends” with the employee? If so, did
they respond online to the post?104
4.
If a coworker responded to the online post, what was the nature of the response? Did
the coworker, in any way, agree with the complaint? Did the coworker similarly complain
about the same or a related term or condition of employment? Was there an online
discussion between the employee and coworkers concerning the subject of the posting?
Or did the coworker’s comment merely express sympathy or otherwise give the
indication that he or she felt that the employee’s posting was simply a personal issue?105
5.
Did the employee responsible for the posting make any statements to suggest that in
posting, he or she was simply “venting,” that the complaint was of a personal nature, or
104
Indeed, the mere act of a coworker “liking” a Facebook post has been found to “constitute[] participation in [a]
discussion that was sufficiently meaningful as to rise to the level of concerted activity.” See Triple Play Sports Bar
and Grille, Case No. 34-CA-12915.
105
See Wal-Mart, Case No. 17-CA-25030 (in finding an employee’s posts to be merely individual griping,
interpreting coworkers’ responses as merely expressions of sympathy or amusement); and see Sagepoint Financial,
Case No. 28-CA-23441 (for same). The obvious concern with this type of approach – looking not just to whether
coworkers have responded to a post but to the content of those responses – is that it is ultimately a highly subjective
inquiry. In what meaningful way, for instance, is an employee’s clicking of the “Like” button for a coworker’s post
expressing frustration at owing taxes different from an employee responding “bahaha like! :)” to a coworker’s post
expressing frustration about a conflict with his supervisor? Thus, two “likes” from coworkers of posts that are (at
least arguably) work-related have received completely different treatment. To an extent, the interpretation of those
comments seems to depend on how they are spun: a simple chuckle at a coworker’s venting? Or an expression of
full support for the sentiment expressed? Distressingly, the road the OGC has set out upon in applying the Meyers
test for concerted activity to social media cases thus, is in some ways, an open invitation to parties and to lawyers to
simply manufacture an explanation supporting their side. Indeed, as one union lawyer commented regarding social
media cases:
“The General Counsel, the ALJs and the Board end up parsing communications based on the
content of the communications to determine whether they are protected. The inevitable result is
gamesmanship and a premium on clever lawyering. Unions and their counsel can assure that their
constituency says the right “magic words” to connect a work stoppage to a particular employment
relationship. By the same token, savvy employers and their counsel can just as easily assure that
they say the right “magic words” in disciplining and discharging employees.”
Wesley Kennedy and Angie Cowan Hamada, Protected Activity and the NLRA in the Age of Social Media,
Presentation at “Employment Relations and the Workplace Representation in the Recovering Economy”, Labor and
Employment Relations Association, (Jan. 6, 2012) at 10.
19
that he or she was not trying to get their coworkers to act on the subject of the
posting?106
6.
Is there any evidence that after making the post, the employee discussed the subject of
the posting with any of his or her coworkers? Did any further action by the employee or
coworkers concerning the subject of the posting occur?
If the employer determines, based on these factors, that the conduct is not concerted,
the inquiry ends and the employer may lawfully discipline the employee for the posting.107
Step 2: Decide whether the posting concerns a protected subject
Once the employer decides that the posting is concerted, it must then consider whether
the posting concerns a protected subject. Specifically, does the subject matter of the posting
relate to the employee’s terms and conditions of employment? This decision is usually not
difficult since, in many instances, it is obvious that a posting is referencing terms and conditions
of employment, such as wages, benefits, working conditions, and even supervisory treatment.108
If that is the case, the conduct will be deemed protected. In some cases, however, it may not
be clear that the conduct about which the posting complains relates to the terms and conditions
of employment. For example, the OGC recently dismissed a charge based on a Facebook
posting, finding it unprotected, where an employee’s posting complained about another
bartender’s practice of cheating customers by making drinks with pre-packaged mixes instead
of premium liquor.109
In recommending dismissal of the charge, the OGC recognized that
employee protests over the quality of service provided by an employer are not protected where
such concerns have only a tangential relationship to employee terms and conditions of
employment.110 Thus, in this case, Advice found that the conduct was not protected as the
bartender’s stated concern that the coworker’s serving cheap drinks to customers would affect
her own tips or result in losing customers was not credible in light of the fact that the employee
was Facebook friends with customers and if she was really concerned about that, she would not
have communicated with customers about the coworker’s conduct. In short, Advice failed to
106
For example, in Public Service Credit Union, Case No. 27-CA-21923, Advice was clear that where the employee
admitted that he posted an individual gripe about a customer on his Facebook page because he was frustrated and
that he was not trying to get other employees to take any action, his conduct could not be found to be concerted.
107
This conclusion assumes the existence of some legitimate work rule of the employer that the employee’s post
violated.
108
See e.g., Arrow Elec. Co., Inc., 323 NLRB 968 (1977), enf’d Arrow Elec. Co., Inc. v. NLRB, 155 F.3d 762 (6th
Cir. 1998) and Datwyler Rubber and Plastics, Inc., 350 NLRB 669 (2007).
109
Advice Memorandum, Rock Wood Fired Pizza & Spirits, Case No. 19-CA-32981 (Sept. 19, 2011); see also
Mem. OM 12-31 at 9 (discussing Rock Wood Fired Pizza & Spirits).
110
Id. at 4 (citing Five Star Transp., Inc. 349 NLRB at 44 and Waters of Orchard Park, 341 NLRB 642, 643-44
(2004)).
20
credit the bartender’s belated attempt to establish some connection between her Facebook
comments and her terms and conditions of employment.111
Step 3: Decide if the conduct is so outrageous as to lose the protection of the Act
Assuming that the posting is protected and concerted, the final inquiry that an employer
must undertake is to determine whether the posting is so extreme or opprobrious that it has lost
its protection of the Act. As discussed above, under Jefferson Standard,112 an employee’s
conduct may lose the protection of the Act where it is especially insubordinate, disobedient, or
disloyal.113 Under Atlantic Steel,114 in turn, the determination of whether an employee who has
engaged in protected concerted activity loses the protection of the Act through opprobrious
conduct involves a balancing of four factors: “(1) the place of the discussion; (2) the subject
matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst
was, in any way, provoked by an employer’s unfair labor practice.”115
As applied to social media cases, there is again little guidance as to when an
employee’s otherwise protected concerted activity loses the protection of the Act based on its
level of disloyalty under Jefferson Standard or the balancing of the Atlantic Steel factors. The
OGC, however, seems to have indicated that it is relatively unconcerned with the use of
profanity or derogatory language.116 The hook for arguing that protected statements have lost
their protection, therefore, may lie in whether they can be cast as especially disloyal.
111
In this case, it appears that the decision to dismiss turned on the reasons expressed for the outburst. If that is the
case, one can expect that these cases will, in fact, not turn on the actual facts but rather on the “clever lawyering”
and “gamesmanship” employed by the parties in these cases. See e.g. footnote 105 above.
112
346 U.S. at 464.
113
Id. at 475-78.
114
245 NLRB at 814.
115
Id. at 816. As noted above in Footnote 28, it appears that the OGC has adopted a hybrid Atlantic Steel/Jefferson
Standard test for determining whether social media postings are so outrageous as to lose their protection of the Act.
116
See American Med. Response of Conn, Case No. 34-CA-12576 (in determining references to supervisor as “17”,
“dick” and “scumbag” were not so opprobrious to lose the protection of the Act, noting that “far more egregious
name-calling” had been found protected, citing Stanford Hotel, 344 NLRB 558, 558-59 (2005) and Alcoa Inc., 352
NLRB 1222, 1226 (2008), where calling supervisors a “liar and a b*tch,” a “f***ing son of a b*tch” and an
“egotistical f***” was not so opprobrious to lose protection); Triple Play Sports Bar and Grille, Case No. 34-CA12915 (finding use of term “a**hole” did not lose protection); and see Plaza Auto Center, Inc., 355 NLRB No. 85,
at *4-5 (Aug. 16, 2010) (holding that an employee’s offensive and personally denigrating outburst toward his
supervisor was insufficient to establish a loss of protection of the Act, suggesting that “an employee’s outburst does
not factor into the loss of the Act’s protection unless accompanied by physical conduct, or at least a threat that is
physical in nature), enforcement denied in part and remanded by Plaza Auto Center, Inc. v. NLRB, 664 F.3d 286 (9th
Cir. 2011) (remanding the case to the Board for further consideration of espousing a rule “at odds with its own
precedents, which recognize that an employee’s offensive and personally denigrating remarks alone can result in the
loss of protection”).
21
To this point, it is notable that Advice dismissed a charge, based in part, upon finding
that an employee’s Facebook comments were not only unrelated to working conditions, but also
sufficiently disloyal such that he lost protection of the Act.117 The employee in that case was
lawfully demoted after he had “engaged in dialogue with a co-worker on [his] Facebook account
regarding recent earthquakes near [his] place of employment,” during which he “made
statements expressing [his] desire for the building to collapse while certain members of
management were inside the building” as these statements were not only disloyal but they were
also unrelated to working conditions and thus, not protected under the Act.118 However,
employers should exercise caution in relying on this case to argue a loss of protection since so
few of the social media charges submitted to Advice have reached consideration of that
issue.119
B.
Determining if Employers’ Social Media Policies Are Lawful
Certainly, an employer’s discipline of an employee for a social media posting will be
under scrutiny if the employer’s social media or electronic communications policy is found to be
unlawfully overbroad. In analyzing social media policies, just like in analyzing other employer
policies, the Board considers whether the maintenance of a work rule or policy “would
reasonably tend to chill employees in the exercise of their Section 7 rights.”120 Specifically, the
Board uses a two-step inquiry to determine whether a work rule has such an effect.121 As the
OGC has explained:
First, a rule is clearly unlawful if it explicitly restricts Section 7 protected activities.
If the rule does not explicitly restrict protected activities, it will only violate Section
8(a)(1) upon a showing that: (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was promulgated in response
to union activity; or (3) the rule has been applied to restrict the exercise of
Section 7 rights.”122
The Board has further cautioned that “rules must be afforded a ‘reasonable’ interpretation,
without ‘reading particular phrases in isolation’ or assuming ‘improper interference with
employee rights.’”123
117
Wal-Mart Distribution Center 6018, Case No. 26-CA-2400 (charge dismissed June 30, 2011)
Id. Advice, however, primarily dismissed the charge based on the fact that the employee was likely a statutory
supervisor falling outside the protection of the Act in any event.
119
See e.g., Frito-Lay, Case No. 36-CA-010882 and Wal-Mart, Case No. 17-CA-25030.
120
Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enf’d 203 F.3d 52 (D.C. Cir. 1999).
121
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).
122
Mem. OM 12-31 at 4.
123
Triple Play Sports Bar and Grille, Case No. 34-CA-12915 (citing Lutheran Heritage Village-Livonia, 343 NLRB
at 646).
118
22
In applying this two-step inquiry, Advice has found the following employer policies
related to the internet, blogging, or social media to be unlawful:
○
A communications policy that “prohibited employees from disclosing or
communicating information of a confidential, sensitive or non-public information
concerning the company on or through company property to anyone outside the
company without prior approval of senior management or the law department.”124
Advice found this rule unlawful in that it attempted to unlawfully restrict
employees from discussing their wages, and other non-public or sensitive
information about their wages and benefits, among themselves and with nonemployees, prohibited them from such discussions even on non-work time, and
required them to obtain approval from the employer before engaging in such
activities.
○
A policy prohibiting employees “from posting pictures of themselves in any media
. . . which depicts the Company in any way, including but not limited to a
Company uniform, corporate logo, or an ambulance.”125 Likewise, in another
instance, a portion of a social media policy prohibiting the “[u]se of company
logos, photographs of any Company store, brand, or product, or use of any other
intellectual property” was found to be unlawful.126 Advice found these policies to
unlawfully restrict employees’ Section 7 rights since they could prohibit
employees from engaging in protected activity. For example, Advice noted that
“an employee would be prohibited from posting a picture of employees carrying a
picket sign depicting the Company’s name, or wearing a t-shirt portraying the
company’s logo in connection with a protest involving the terms and conditions of
employment.”127
○
A policy prohibiting employees from “making disparaging . . . comments when
discussing the Company or the employee’s superiors, co-workers, and/or
competitors.”128 Such a rule was found to be ambiguous because it “contain[s] no
limiting language or context that would clarify to employees that [it does] not
restrict Section 7 rights.”129 Similarly, a policy prohibiting “[m]aking disparaging
comments about the company through any media, including online blogs, other
electronic media or through the media” was also found to be unlawful because it
would reasonably be construed as restricting statements “that the Employer is,
for example, not treating employees fairly or paying them sufficiently” which is
clearly conduct protected by Section 7 of the Act.130
124
Mem. OM 12-31 at 13.
American Med. Response of Conn., Inc., Case No. 34-CA-12576.
126
Advice Memorandum, Giant Eagle, Inc., Case No. 6-CA-37250, at 2 (June 22, 2011).
127
American Med. Response of Conn., Inc., Case No. 34-CA-12576 (citing Pacific Northwest District of Carpenters,
339 NLRB 1027, 1029 (2003) and Boise Cascade Corp., 300 NLRB 80, 86 (1990)); see also Giant Eagle, Inc., Case
No. 6-CA-37260, at 4. See also Mem. OM 12-31 at 14 (recognizing that employees have a Section 7 right to use
their employer’s name or logo in connection with protected concerted activity, such as to communicate with fellow
employees or the public about a labor dispute) (relying on Pepsi-Cola Bottling Co., 301 NLRB 1008, 1019-20
(1991), enf’d. 953 F.2d 638 (4th Cir. 1992)).
128
American Med. Response of Conn., Inc., Case No. 34-CA-12576, at 13 (alteration in original) (relying on
University Medical Center, 335 NLRB 1318, 1320-21(2001)).
129
Id.
130
See Mem. OM 12-31 at 3-4.
125
23
○
A portion of a social media policy prohibiting employees from referencing,
including through photographs, citing, or revealing “personal information” about
coworkers, clients, partners or customers without their express consent.131 The
restriction on revealing “personal information” was found to be overly broad, as
employees have a Section 7 right to discuss wages and other terms or conditions
of employment and Advice found that a rule that precludes employees from
sharing information about themselves or fellow employees with each other or
with non-employees violates that right.132
○
A policy stating that, an employee could not, without prior consent from the
employer, establish or participate in a website or social network that disparages,
misrepresents or negatively impacts the employer, or make false or misleading
statements regarding the employer.133
○
A policy stating that employees would be subject to discipline, including
termination, for comments or posts on social media that “violate [the employer’s]
policies or are inconsistent with [its] mission, vision, values and . . . [s]ystemwide
competencies and behaviors.”134
○
A policy prohibiting, in external social networking situations, employees from
“identifying themselves as the Employer’s employees, unless there was a
legitimate business need to do so or when discussing terms and conditions in an
appropriate manner.”135 Advice emphasized that the characterization that there
was an “appropriate” manner of discussing terms and conditions of employment
signified that there was also an inappropriate manner of doing so. Since
“appropriate” was not defined, employees could not reasonably be expected to
know what discussions regarding terms and conditions would be inappropriate
and thus, employees could reasonably construe the policy as prohibiting them
from criticizing their employer.136
○
A policy prohibiting employees from using social media to engage in
“unprofessional communication that could “negatively impact the employer’s
reputation
or
interfere
with
the
Employer’s
mission
or
unprofessional/inappropriate communication regarding members of the
Employer’s community.”137 Although the rule did contain examples of clearly
unprotected conduct, such as displaying sexually oriented material or revealing
trade secrets, it also contained examples that could reasonably be read to
include protected conduct, such as inappropriately shared confidential
information related to the Employer’s business, such as personnel actions.
○
A policy requiring employees to first discuss with their supervisor or manager any
work-related concerns before posting communications was found to unlawfully
131
Giant Eagle, Inc., Case No. 6-CA-37260, at 2.
Id. at 3-4.
133
Children’s Hospital of Pittsburgh of UPMC, Case No. 6-CA-37047 (Complaint issued Oct. 29, 2010).
134
Id.
135
See Mem. OM 12-31 at 7. See also id. at 15 (finding another employer’s social media policy unlawful on similar
grounds).
136
Id. at 8. See also id. at 15 (again finding the terms in another employer’s social media policy concerning
“professional” and “appropriate” to reasonably be construed as unlawfully prohibiting employees from
communicating on social media sites about protected concerns).
137
Id. at 12.
132
24
restrict employees’ Section 7 right to discuss their terms and conditions of
employment with coworkers or non-employees.138
Although, in some of these instances, employers with these policies have tried to “save”
their policies with a disclaimer to the policy stating that “nothing in the policy should be
construed as a limitation on employees’ rights under the Act,” Advice has specifically rejected
the notion that a use of such a “savings clause” can deem an otherwise overly broad social
media policy lawful, contending that employees may not know what their rights are under the
Act so such a disclaimer is ambiguous.
On the other hand, the following employer social media policies have been found to be
lawful:
○
An internet/blogging policy that prevented employees from “revealing confidential
and proprietary information about the Company, or engaging in inappropriate
discussions about the company, management, and/or co-workers…”139 Here, the
challenge was that the term “inappropriate” was impermissibly broad, and could
be read to restrict employees’ Section 7 rights. The ALJ disagreed. She noted
that the policy’s caution against “inappropriate discussions about the company,
management, and/or coworkers” appeared to be “directed toward maintaining the
company’s reputation with respect to the general public.”140 As such, it was
similar to other policies aimed at protecting a company’s reputation which the
Board had previously found permissible.141
○
A social media policy prohibiting employees from discussing over any form of
social media numerous topics, including “[d]isparagement of Company’s or
competitors’ products, services, executive leadership, employees, strategy, and
business prospects”.142 Although the ban on disparagement alone could chill
employees’ exercise of their Section 7 rights, Advice emphasized that policies
must not be read piecemeal, but as a whole.143 And as a whole, the policy would
not be construed by a reasonable employee as a limit on his Section 7 conduct:
it covered a list of clearly unprotected, “plainly egregious conduct,” such as
“employee conversations involving the Employer’s proprietary information,
explicit sexual references, disparagement of race or religion, obscenity or
138
Id. at 15. See also Valley Hosp. Med. Centers, Inc., 351 NLRB at 1250; KinderCare Learning Centers, 299
NLRB 1171, 1171-1172 (1990); Easter Seals Connecticut, Inc., 345 NLRB 836 (2005).
139
Triple Play Sports Bar and Grille, Case No. 34-CA-12915.
140
Id.
141
Id. (citing Tradesmen International, 338 NLRB 460, 460-61 (2002); Ark Las Vegas Restaurant Corp, 335 NLRB
1284, n.2, 1291-92 (2001); Flamingo Hilton-Laughlin, 330 NLRB 287, 288-89 (1999); Albertson’s, Inc., 351 NLRB
254, 258-59 (2007); and Lafayette Park Hotel, 326 NLRB at 825-26). Please note that this ALJ decision seems to
be in direct contradiction to the policies to which Advice has deemed unlawful because they do not sufficiently
define “inappropriate.” See Footnotes 135-137 above.
142
Advice Memorandum, Sears Holdings (Roebucks), Case No. 18-CA-19081, at 3. (Dec. 4, 2009); see also
Tradesman International, 338 NLRB at 462 (finding that a prohibition against statements that are “slanderous or
detrimental” to the employer would not reasonably be construed to cover protected concerted activity where the rule
focused on clearly other illegal activity such as sabotage and harassment).
143
Sears Holdings, Case No. 18-CA-19081, at 6.
25
profanity, and references to illegal drugs.”144 Moreover, the preamble explained
that it was designed to protect the employer rather than restrict employees’
Section 7 rights.145
○
A portion of a social media policy providing that: “No [employee] is required to
participate in any social media or social networking site (unless required as a part
of the job), and no [employee] should ever be pressured to ‘friend,’ ‘connect,’ or
otherwise communicate with another [employee] via a social media outlet.”146
Such a rule was deemed not unlawful because it is “sufficiently specific in its
prohibition against pressuring co-employees and clearly applies only to harassing
conduct.”147
○
A policy prohibiting “the use of social media to post or display comments about
coworkers or supervisors or the Employer that are vulgar, obscene, threatening,
intimidating, harassing, or a violation of the Employer’s workplace policies
against discrimination, harassment, or hostility on account of age, race, religion,
sex, ethnicity, nationality, disability, or other protected class, status, or
characteristic” was found to be lawful in that it would not be reasonably construed
to apply to prohibiting Section 7 activity but rather to “only plainly egregious
conduct.”148
○
A social media policy of a national drugstore chain that provided that: “The
Employer could request employees to confine their social networking to matters
unrelated to the company if necessary to ensure compliance with securities
regulations and other laws” and prohibited “employees from using or disclosing
confidential and/or proprietary information, including personal health information
about customers or patients,” and also prohibited “employees from discussing in
any form of social media ‘embargoed information’ such as launch and release
dates and pending reorganizations” was found to be lawful because “employees
reasonably would interpret the rule to address only those communications that
could implicate security regulations” and not to prohibit them from discussing
terms and conditions of employment.149 Furthermore, Advice went on to find
lawful the same employer’s policy that “while engaging in social networking
activities for personal purposes, employees must indicate that their views were
their own and did not reflect those of their employer” and the prohibition “from
referring to the Employer by name and from publishing any promotional content”
reasoning that employees could not reasonably interpret “promotional content” to
restrict Section 7 activity.
Although these Advice decisions provide some guidance concerning those social media
policies that may come under attack and those that will withstand scrutiny, it is also easy to see
from these examples how fact specific each inquiry is and how much will be determined only
after reading a rule or policy in its entirety. Furthermore, as none of these policies have yet to
be tested by the Board or the courts (and, in some cases, it appears an ALJ might disagree with
144
Id.
Id.
146
Giant Eagle, Inc., Case No. 6-CA-37260, at 2.
147
Id. at 3 (emphasis in original).
148
Mem. OM 12-31 at 16 (relying on Tradesman Int’l, 338 NLRB at 460-2).
149
Id. at 17.
145
26
the OGC’s conclusions),150 employers’ social media policies are likely to continue to be
scrutinized and some will likely be struck down by the Board. In the meantime, employers’
safest course of action will likely be to try to be as clear and specific in their policies as to the
type of conduct that is prohibited, to make it clear in their policies that employees are not
prohibited from discussing their wages, benefits or any other term or condition of employment,
and to try to model their policies, as much as possible, to the language in those policies
described above that have been considered and have been found to be lawful.
IV.
CONCLUSION
While the OGC has provided some guidance on what policies are clearly unlawful, the
Board has repeatedly refused to be the drafter of employment policies. Thus, while employers
may now know what not to do in drafting policies, they still have little guidance from the Board
on what they can do. Moreover, a reading of the OGC Memoranda on social media is sure to
cause employers, at least, a fair amount of frustration and confusion as they try to sort through
the facts in the 20+ cases considered and make sense of the circumstances under which
employee postings on social media platforms will be considered protected concerted action and
when it is conduct for which they may legitimately discipline. And even after diligently sifting
through all the cases discussed in these Memoranda, given that the OGC’s findings have not
yet been presented to the Board or the courts for decision and, given that this is an ever
changing area of the law, employers who feel strongly about the legitimacy of their social media
policies or their disciplinary actions in response to social media postings may well need to
decide that they will be the next test case in hopes of making way for interpretations that favor
employer’s rights to regulate this conduct. In the meantime, employers, employees and unions
alike will keep hoping for a clear-cut decision from the Board and/or the courts which will help
them navigate the muddy waters of dealing with social media issues in the workplace.
150
Compare cases discussed in footnotes 135-137 with those discussed in 139-141 above
27