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In his preamble to the report, Solomon notes that employers’ social media policies and employees’ online postings, as well as the NLRB’s approach to these emerging issues, are a “hot topic” not just in legal and human resources circles, but also in the media and among the general public.  Thus, according to Solomon, the purpose of the latest report is to “provide guidance as this area of the law develops.”

A few key themes emerge from the cases presented in the report:

• Seven of the fourteen cases summarized in the report deal with whether the employers’ social media policies were so “overbroad” that they interfered with employees’ Section 7 right to engage in protected concerted activity. 
• In scrutinizing whether a social media policy was overbroad, the Board considered whether the policy could be reasonably construed by an employee to limit activities protected under Section 7, such as discussions about wages and other terms and conditions of employment.  As a result, the Board struck down policies that used terms such as “appropriate” or “professional” to describe what kind of social media posts the employer allowed without doing more to define those terms or to clarify that concerted activity protected under Section 7 was not restricted.
• The Board also considered whether the employers’ social media policies contained “limiting language excluding Section 7 activity from its” restrictions and whether the examples of prohibited conduct used in those policies could be “reasonably read” to include protected conduct. 
• The Board also looked at industry and employer-specific context in evaluating social media policies.  For example, a drugstore operator’s social media policy, which restricted employees from discussing matters related to the company on social media sites, was considered lawful by the Board.  According to the NLRB, when interpreted in context, the drugstore operator’s employees would understand the policy to only restrict those communications that might implicate SEC or FTC regulations and not those communications protected under Section 7.
• Terminations that occurred under social media policies the NLRB considers unlawfully overbroad are not unlawful by default.  For a termination to be unlawful, the comments made by the employee giving rise to his or her termination must qualify as protected concerted activity under Section 7.  Thus, an employer must carefully consider whether the employee’s posting is merely unprotected “venting” about a matter of individual concern or whether the comments were intended to (or actually did) initiate a collective discussion or group action.

The guidance provided by the NLRB indicates that employers should be conscious of protected concerted activity when responding to employees’ social media posts and should additionally ensure that social media policies are drafted narrowly so as not to infringe on employees’ rights protected by the National Labor Relations Act (“NLRA” or the “Act”).  Solomon explains that he offers the case summaries in the NLRB report in an effort to assist practitioners and human resources professionals and to “encourage compliance with the Act and cooperation with Agency personnel.”  Several of the cases in the NLRB’s report are discussed below.

Facebook postings determined to be protected concerted activity

• In preparation for a meeting at work to discuss job performance, an employee posted on Facebook that her coworkers did not help the employer’s clients enough and asked her coworkers how they felt.  Several coworkers responded to the Facebook post.  The NLRB explained that such actions were protected concerted activity because the employee was acting with or on the authority of other employees; the posts commented on staffing and job performance and therefore implicated the terms and conditions of employment; and the posting was initiated in preparation for a meeting with the employer.
• A sales person posted pictures on Facebook from a work event and included comments criticizing the employer for its hosting of the event and providing inexpensive food and beverages.  The sales person’s activities were protected concerted activity because he had been complaining with coworkers about the food for the event and the sales person had told his coworkers that he would be placing the pictures on Facebook.  As a result, the sales person was vocalizing the sentiment of his coworkers.  Additionally, the post was related to the terms and conditions of employment since the choice of refreshments could impact the employee’s commission.

Facebook posts and tweets that were not protected concerted activity

• The Board advised that an employer’s termination of an employee who tweeted inappropriate tweets from a work-related Twitter account was not unlawful.  The employee’s tweets included a tweet critical of the paper’s copy editors, tweets about homicides in the city where the paper was published and several tweets with sexual content.  The employer did not have a social media policy but instructed the employee not to tweet about anything work related.  Because the employee was terminated for writing inappropriate and offensive comments, which did not involve protected concerted activity, his termination did not violate the Act.
• An employee did not engage in protected concerted activity when he posted on Facebook complaining about his employer’s tipping policy.  The employee, a bartender, never raised the issue with management and no other employees commented or responded on his Facebook posts nor was the issue ever raised with his coworkers.  The NLRB determined that the employee was acting solely on behalf of himself and there was no concerted activity.
• The NLRB found that an employee who had posted on Facebook about an individual gripe was not engaged in protected concerted activity.  The employee had posted on Facebook after an interaction with a new assistant manager and commented about the “tyranny” at the store, noting that a lot of the employees are about to quit.  Although other coworkers posted supportive comments, the Board advised that there was no concerted activity because the posting did not include any language indicating that the employee sought to initiate or induce coworkers to engage in action.

Violations of Section 8(a)(1) for threatening to sue

• Employer violated Section 8(a)(1) when the employer’s attorney sent a letter to employee who had posted comments on Facebook expressing her dissatisfaction with the employer for not withholding state taxes and stating that the employer did not know how to do paperwork.  The letter stated that legal action would be taken unless the employee retracted her “defamatory” statements.  The NLRB advised that the letter was unlawful even if there was a reasonable basis for the potential legal action because the letter would reasonably tend to interfere with the employee’s Section 7 rights.

Union’s video on Facebook could coerce or restrain individuals’ right to work for a non-union employer

• The Union violated Section 8(b)(1)(A) by posting an interrogation videotape on YouTube and Facebook.  A union business agent and several organizers went to a nonunion jobsite with a video camera and told the employees that they were inspecting the job and had received reports of illegal workers.  The individuals did not identify themselves or reveal their union affiliation but proceeded to question the employees about their immigration status, forcing the employees to respond when they resisted.  After videotaping the interrogations, the union then edited the video and posted it on YouTube and Facebook.  The Board explained that the union’s conduct violated the Act because it had a reasonable tendency to restrain or coerce employees in the exercise of their Section 7 rights, which includes the right to work for a nonunion employer.

Overbroad social media policies

• An employer had a policy that 1) prohibited employees from using any social media that may violate, compromise or disregard the rights and reasonable expectations of privacy or confidentiality of any person or entity; 2) prohibited any communication or post that constitutes embarrassment, harassment or defamation of the employer, its employees, officer board member, representative or staff member; and 3) prohibited statements that lack truthfulness or that might damage the reputation or goodwill of the employer, its staff, or employees.  Because the policy prohibiting the use of social media in regards to confidentiality did not have any limits, did not explain what was confidential and was used to terminate an employee for posting on Facebook about working conditions which would be protected by the Act, the Board advised that the policy was overbroad.  Additionally, the Board found the other policies overbroad as well because they would apply to protected criticism of the employer’s labor policies or treatment of employees and the policies did not define its broad terms to limit them to exclude Section 7 activity.

Lawful social media policy

• The NLRB determined that an employer’s social media policy that precluded employees from pressuring their coworkers to connect or communicate with them via social media could not reasonably be read to restrict Section 7 activity and was sufficiently specific in its prohibition against pressuring coworkers and applied only to harassing conduct.  The Board also considered several of the employer’s other social media guidelines and found them to be overbroad because they could be interpreted to restrict Section 7 rights.

Signaling the NLRB’s intent to continue to closely probe other employers’ disciplinary actions against employees for work-related complaints on social media, on April 12, the NLRB’s Office of the General Counsel issued a memorandum to its regional offices adding social media disputes to the list of matters that the regional offices must submit to the NLRB’s Division of Advice for a decision on how to proceed.  The Division of Advice is responsible for issuing opinions on difficult or novel labor issues.

Two unfair labor practice complaints recently issued by NLRB regional offices against employers illustrate the close scrutiny the NLRB is giving to employers’ termination decisions when presented with allegations that an employer terminated one or more employees for statements made on social media.  On May 9, the NLRB Regional Office in Buffalo, New York filed a complaint against an employer alleging that it illegally fired five employees for posting critical comments about working conditions on an employee’s Facebook page in response to a coworker’s allegation that the employees failed to do enough to help the organization’s clients.  Less than two weeks following the issuance of this complaint, the NLRB Regional Office in Chicago issued a complaint against a local car dealership alleging unlawful termination of an employee for posting comments on his Facebook page that were critical of the dealership for serving only hot dogs and bottled water during a customer event. 

Although it is unclear whether either of these employers will ultimately be adjudged to have committed an unfair labor practice for the employee terminations at issue, these recent complaints underscore the NLRB’s growing alertness to the topic of social media and its role in the workplace.   Further, these complaints counsel employers to carefully consider their social media policies and the legal risks associated with terminating employees for criticizing the company on social media forums such as Facebook and Twitter. 

Citing lack of governing precedent and the important policy issues involved, the NLRB’s Acting General Counsel Lafe E. Solomon instructed regional offices to submit for review “cases involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter.”

On a related note, earlier this month, the NLRB's Manhattan Regional Director informed Thomson-Reuters that the NLRB planned to file a complaint against the company for allegedly reprimanding an employee who had criticized company management on Twitter.  A complaint is not yet publically available. 

This is not the first time a regional NLRB office challenged an employee’s social media policy.  In October 2010, the NLRB’s Connecticut Regional Office issued a complaint against the American Medical Response of Connecticut over an employee’s termination for posting unflattering statements about her supervisor on Facebook. The NLRB settled this complaint in February 2011.  The settlement required the company to revise its policy to "ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work.”  The employer also agreed that it “would not discipline or discharge employees for engaging in such discussions.”

While the NLRB has not yet issued a ruling in any case that would provide precedential guidance on social media issues as noted in the General Counsel memorandum, the NLRB Division of Advice has considered an employer’s social media policy and refused to issue a complaint.  In 2009, a union asked an NLRB regional office to issue a complaint against Sears Holdings Corporation for maintaining a social media policy that prohibited, among other things, “disparagement of company's or competitor's products, services, executive leadership, employees, strategy, and business prospects” on the grounds that the policy restricts the employees’ right to “engage in concerted activities” under Section 8 of the National Labor Relations Act (“NLRA”).  The Division of Advice found that the disparagement provision, read in concert with a list of proscribed activities including “abusive and profane language” and “verbal, mental, and physical abuse” did not violate the NLRA.  Noting that the employer’s policy explicitly stated its intent not to restrict the flow of useful and appropriate information, the Division of Advice concluded that a complaint was not warranted because the policy as a whole did not reasonably tend to limit or chill protected activities.

While the NLRB’s position on social networking policies remains unclear and somewhat inconsistent, the recent General Counsel memorandum underscores the NLRB’s growing alertness to the topic of social media and its role in the workplace.

OSHA has created the “Distracted Driving Initiative,” to combat distracted drivers. OSHA’s first focus is on texting while driving. Texting is perceived as more hazardous than talking on a cell phone, because drivers take their eyes off the road when they text. 

David Michaels, the Assistant Secretary of Labor at OSHA, spoke at a symposium on April 18, 2011 and said OSHA is prepared to start issuing citations and fines to employers for distracted driving by employees who text when they drive. Employers will be held responsible if they create a situation where employees are required to use their phones while driving, or have a strong incentive to do so, and that conduct results in an accident that causes personal damage. OSHA does not plan to enact a new rule or standard under the Occupational Safety and Health Act. Instead, OSHA will pursue texting fines under the Act’s “general duty” clause, which requires employers to provide a safe workplace free of recognized hazards. 

OSHA is calling on employers to create a text-free zone by prohibiting employees from texting while driving for work. President Obama has already done so for federal workers. He signed an Executive Order in 2009 which bans federal employees from texting while driving on the job or using government equipment. In addition, more than half the states currently have some type of law that limits cell phone use by drivers.

Employers should review current policies to ensure they do not require employees to text while driving for their jobs. Employers should also organize the work of their employees so that texting while driving is not a practical necessity.

The Plaintiff, Jill E. Maremont, worked as the Director of Marketing, Public Relations and E-Commerce for an interior designer and her company, Susan Fredman and the Susan Fredman Design Group, Ltd. (Defendants). Maremont contends she created a “popular personal following” on Facebook and Twitter, and she also created a company blog called “Designer Diaries: Tales from the Interior.” 

According to Maremont’s complaint, in September 2009 she was struck by a car and was hospitalized, then homebound, for months while she recovered. During this time, the Defendants allegedly impersonated Maremont by writing Posts and Tweets to her personal Facebook and Twitter followers, promoting Susan Freidman Design Group. Maremont asked Defendants to stop, but they continued. Maremont eventually changed her account passwords. 

Maremont filed suit against the Defendants alleging three claims: (1) false association/false endorsement under the Lanham Act, 15 U.S.C. § 1125(a)(1)(A); (2) right to publicity under the Illinois’ Right to Publicity Act, and (3) violation of her common law right to privacy.

Defendants filed a motion to dismiss all claims. The Court denied the motion as to the first two counts, but dismissed the common law action. On the first count, the Court ruled that Maremont had adequately alleged a commercial injury based on the Defendants’ deceptive use of her name and likeliness. On the second count, the Court found Maremont had sufficiently alleged that Defendants used her likeness to promote the business without her written consent, in violation of the state law. The Court also applied a “continuing violation rule” to find this state claim timely, ruling that the limitations period did not begin to run until the Defendants’ “last unlawful Tweet.” On the third count, the Court found Maremont’s claim preempted by the Illinois Right to Publicity Act.  The Court further ruled that Maremont had not adequately developed her alternate argument in Count III, that Defendants’ intrusion into her personal “digital life” is actionable under the common law theory of unreasonable intrusion upon the seclusion of another. She also had not alleged actual malice or special damages, as needed to support a false light claim. The case is now proceeding to discovery.

As this case demonstrates, social media litigation is a growing trend. Employers may unwittingly expose themselves to claims by assuming that all online activity related to the business is company property. Employers should clearly distinguish between the personal social media accounts of their employees and those that belong to the business itself. Personal employee accounts, even if used to promote company business, should not be accessed without the employees’ express written permission. Clear written policies on social media use are the best way to clarify the respective roles and expectations of employees and employers.

The NLRB’s Complaint

On October 27, 2010, the NLRB’s Connecticut Regional Office (Region 34) issued a complaint alleging that American Medical Response of Connecticut illegally terminated an employee for, among other things, violating the Company’s social media policy.  At issue is whether an employee’s unflattering and critical social media  posts about her supervisor, which triggered co-workers to post supportive messages, constitute a protected concerted action under the National Labor Relations Act (the “Act”).   The NLRB also alleges that the Company’s social media policy, which prohibits such conduct, violates the Act because it tends to chill employees from exercising their protected right to protest working conditions.  This despite a prior guidance that permitted such a policy.  A hearing on the complaint has been set for January 25, 2011.
 
Factual Background

In November 2009, the Company received a customer complaint regarding bargaining unit member Dawnmarie Souza’s (“Souza”) rude and discourteous service.  Souza, who was requested by her supervisor to prepare a response to the customer’s complaint, asked her supervisor to allow a union representative to assist in preparing the response.  A few hours after her supervisor denied this request, Souza posted comments on her personal social networking page mocking her supervisor.  In addition to using vulgar language to characterize her supervisor, Souza also referred to her supervisor as a “17”— company-speak for a psychiatric patient.  Souza’s postings drew supportive comments from her co-workers, which, in turn, led Souza to post further negative comments about her supervisor.  Souza was eventually terminated.

At all material times during Souza’s employment, the Company maintained a Blogging and Internet Posting Policy which prohibited employees from, among other things, making “disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers….”

The Bottom Line

The NLRB’s complaint against American Medical Response, in tandem with Mr. Solomon’s publicly-expressed sentiment, represent a troubling departure by the Board on prior advice it issued regarding social networking policies. It is unclear whether the Board will ultimately agree with Mr. Solomon that an employee’s comments made on a social networking site are analogous to those made around a company water cooler, particularly since such view would require overlooking the reality that the recipients of such communications will necessarily include both employees and non-employees alike.  What is clear, however, is that the Board is actively challenging social networking and other workplace policies.  For this reason, all employers are encouraged to carefully review their social networking and other policies that may get the attention of the NLRB.

The Romano decision falls in line with a handful of other cases that have addressed this issue, including Ledbetter v. Wal-Mart Stores, Inc. (D. Colo. 2009), Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc. (D. Nev. 2007), and Beye v. Horizon Blue Cross Blue Shield (D. N.J. 2006).  As in Romano, each of these courts held that information posted on social networking sites is, at least in part, discoverable.  
 
In Romano, the plaintiff filed suit against the manufacturer and distributor of her office chair after she allegedly fell off the chair.  The plaintiff alleged that she sustained “permanent injuries” from the fall and, as a result, was generally confined to her home. 

In discovery, the defendants sought information and pictures posted to plaintiff’s Facebook and MySpace accounts.  Defendants alleged that plaintiff had posted pictures of herself “smiling happily … outside the confines of her home,” which was contrary to her claim that she was confined to her home. 

The court agreed with the defendants.  Citing a strong public policy in favor of disclosure in pre-trial discovery, the court held that “[p]laintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action.” 

The court rejected plaintiff’s argument that the information should be protected on privacy grounds.  The court reasoned that, when creating Facebook and MySpace accounts, plaintiff knew that her information would be available to the public.  Thus, the court reasoned, she had no reasonable expectation of privacy. 

The Romano case teaches that not only plaintiffs, but executives, managers, and supervisors should be mindful about the content that they post on social networking sites.  Although recent decisions have been favorable for defense attorneys seeking information about plaintiffs, it is conceivable that this decision could be used against employers to seek social networking data posted by decision-makers.  A manager’s posting—“Glad we got rid of that complainer!”—would likely be an employer’s worst nightmare in a retaliation case. 

With more than  400 million users, Facebook and MySpace are potential gold mines of information.  Each month, more than  three billion photos and 180 billion posts are uploaded to Facebook.  Savvy lawyers are just starting to mine this valuable source of information. 

Lawyers who use social networking sites as an informal discovery tool should be mindful of the ethical dilemmas.  The Philadelphia Bar Association recently issued an ethics opinion stating that it is unethical for an attorney to use a third-party to “friend” an individual, so that the lawyer can gain access to information on that individual’s page.  The opinion cited state ethics rules prohibiting lawyers from engaging in “dishonesty, fraud, deceit or misrepresentation.”

Protected Concerted Activity 

Section 7 of the NLRA protects “the right . . . to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.”  29 U.S.C. §  157.  “Concerted activity” is action taken in pursuit of a common goal by multiple employees or by a single employee where the employee is authorized by other employees to act on their behalf.  The concerted activity is protected if it is intended for mutual aid or protection (a lawful objective) and executed by a lawful method.  Many people think of strikes, group complaints, or honoring picket lines as typical activities protected by the NLRA.  However, an activity may fall under the protection of the NLRA even where it appears to have little or nothing to do with unions.  Employees have the right to engage in concerted activities even where no union activity is involved and in situations where the employees have not considered a collective bargaining agreement. 

Under Section 8 of the NLRA, employers may not interfere with, restrain, or coerce employees in their rights to engage in concerted activities.  29 U.S.C. §  158(a)(1).  Employers who take an adverse action toward, or retaliate against, employees because of protected concerted activities may violate the NLRA and possibly find themselves having to defend against an unfair labor practice charge.  As noted, this is the case for both unionized and non-unionized employers. 

Facebook, Blogs, Chat Rooms and More

When addressing employee use of social media, employers should be aware that unions and possibly the NLRB may construe employees’ use of social media as protected concerted activities.  Unions may argue that employees are exercising their Section 7 rights when they use Facebook, blogs, chat rooms, twitter and even email.  Because of its nature, social media provides the perfect opportunity for employees to interact with one another, and unions and the NLRB may try to classify such interactions as employees engaging in protected concerted activity.   

Social media, and employees’ use of it, presents considerable challenges to employers.  Misuses of social media can result in damage to the employer’s reputation, breach of confidentiality, and trade secret theft.  To minimize those risks, employers may implement a social media policy to provide some limitations on how social media may be used relating to the company.  Such policies may address employees’ use of social media both at the workplace, with company property, and outside of the workplace.  When constructing such a policy, employees’ Section 7 rights should be considered.   Employers must avoid any policy that may reasonably tend to “chill” employees in the exercise of their Section 7 rights, such as overly broad restraints that forbid employees from discussing work conditions with one another or from discussing the company on the Internet or other social forums. 

Other Possible NLRA Claims

With regard to social media, unions may also argue that employers violate the NLRA by monitoring employees’ use of social media because they are engaging in surveillance of union activities.  Employers generally may not use surveillance where employees are engaged in protected union activities, such as exercising their Section 7 rights.  Because surveillance tends to discourage employees from exercising their Section 7 rights, it is viewed as a violation of the NLRA.  Where unions assert surveillance concerns with social media, the matter will often turn on whether the social media is public or private (where there are passwords in place to limit access to the blog, chat room, Facebook page, etc.).  Employers also should treat both union and non-union use of social media in the same manner to avoid allegations of discrimination against union members and union interests. 

Because of the significant increase in its use, social media creates new challenges for employers in protecting their legitimate business interests.  Employers should be aware of the possibility that unions and the NLRB could seek to invoke the NLRA to protect employees’ use of social media in several respects. 

Facebook also played a prominent role in another recent legal case, Leduc v. Roman, 2009 CanLII 6838 (ON S.C.).  A plaintiff injured in a car accident alleged that he was suffering severe loss of enjoyment of life.  The defendant argued that photos and text on the plaintiff’s Facebook page might tell a different story.  An appellate court ruled that the material should have been produced in discovery, even if privacy issues might be implicated.

Individuals who post information on Facebook and other social media are not the only ones who face risks.  Currently the Equal Employment Opportunity Commission (EEOC) is considering the role that social media might play in actions under the Genetic Information Nondiscrimination Act (GINA), which became effective in November 2009.  GINA prohibits employers from making decisions based on genetic information, which includes information showing genetic predisposition to medical problems such as family medical history.  Because individuals might post such information on social media sites, employers easily could obtain such information.

Many employers search for information about job applicants and employees on social media sites.  Currently there are no prohibitions against doing so.  The prevailing rationale is that information made available to the public is equally available to employers.  Although GINA does not prohibit employers from obtaining genetic information through lawful internet searches, it does prohibit employers from making adverse employment decisions based on such information.  Once an employer obtains such information, from whatever source, the employee or the EEOC could argue that an adverse decision was motivated by such information. 

While individuals should exercise caution in the type of information they post about themselves on social media sites, employers also should beware of trying to obtain too much information about their employees and applicants.  A possible rationale for a legal challenge would be that employers would not seek such information if they did not intend to use it.  Thus, social media will continue to pose risks for employees and employers alike.