Are social media posts protected? What all employers need to know about the NLRB and social media

We’ve all read news at one time or another about labor issues or disputes between company management and union employees. Many employers with nonunionized workforces, such as CPA firms, don’t think these stories are relevant to them and pay little attention to decisions by the National Labor Relations Board (NLRB), the federal agency that enforces the National Labor Relations Act (NLRA).

However, in light of recent NLRB decisions and guidance, perhaps they should pay attention. Section 7 of the NLRA, which addresses the rights of employees, and related recent NLRB decisions potentially affect all employers that fall within NLRB jurisdiction. In particular, these decisions may limit the ability of an organization, whether or not it has a unionized workforce, to discipline or terminate employees for their social media postings. In recent years, the NLRB has prioritized NLRA enforcement actions involving social media. This trend is relevant for any firm or company that has employees who are active on social media.

LEGAL BACKGROUND

The NLRB has statutory jurisdiction over private-sector employers whose activity in interstate commerce exceeds a minimal level. An employer falls within NLRB jurisdiction if the amount of goods or services provided, directly or indirectly, by the employer out of state (its outflow) or purchased from out of state (its inflow) is at least $50,000. Under this test, the majority of CPA firms probably fall within NLRB jurisdiction.

Section 7 of the NLRA protects union and nonunion employees alike who engage in concerted activities “for the purpose of collective bargaining or other mutual aid or protection.” Traditionally, Section 7 claims involved “water cooler” or other informal conversations among employees regarding wages or working conditions. However, the advent of social media means that many of these discussions are now conducted online, with a broader audience and greater potential to damage an employer’s reputation.

The NLRB has concluded that Section 7 protections extend to certain work-related conversations conducted on social media, without taking into consideration the employer’s interest in limiting harm to the business. Taking action against an employee who has engaged in protected concerted activities (a legal term defined in the NLRA)—whether in person or electronically—may be a violation of the NLRA (see NRLB fact sheet “The NLRB and Social Media” at tinyurl.com/ps7k8k8 for additional information).

The NLRB has issued complaints against employers whose workforces are not unionized, for interfering with their employees’ Section 7 rights when employees are disciplined or terminated for social media activity. In these situations, the NLRB may order the employer to reinstate the employee and/or pay damages, such as back pay. Additionally, recovering from the external and internal reputational damage resulting from these types of allegations can be difficult.

PROTECTED AND UNPROTECTED ACTIVITIES

The NLRB defines “concerted activity” as actions “engaged in, with, or on the authority of other employees, and not solely by and on behalf of the employee himself” (see Meyers Industries, 281 NLRB 882 (1986)). It includes situations in which employees seek to initiate, induce, or prepare for group action, as well as when an individual employee brings “truly group complaints” to management’s attention. To be protected under the NLRA, the concerted activity must involve mutual aid for employees concerning wages and/or working conditions.

In NLRB decisions addressing this area, the threshold issue is whether the employee’s online communication constitutes a protected concerted activity. If so, any disciplinary action, including termination, violates the NLRA. In one case where social media activity was held to be protected concerted activity (Design Technology Group, LLC, 359 NLRB No. 96 (2013)), a Facebook post containing an employee’s complaints about her supervisor’s treatment of subordinates drew supportive postings by co-workers who had similar complaints. One co-worker responded that she was going to bring a book about employee rights to work. The supervisor became aware of the critical statements made about her and fired the employees who had posted them. The NLRB held that the terminations violated the NLRA because the Facebook posts were protected concerted activity.

Imagine a similar situation at a CPA firm. An associate tweets a disparaging comment about a partner after being forced to stay late at a client’s office. Fellow staff members chime in by retweeting the original post, adding their own comments and stories in agreement, with one co-worker suggesting a call to the firm’s whistleblower hotline. If the partner fires or otherwise disciplines the offending tweeters, this may be considered a Section 7 violation.

Employee social media postings that do not constitute concerted activity—including comments made solely by and on behalf of an employee, or “mere griping” without an appeal to take action—are not protected by the NLRA. For example, an associate who complains to a family member on a social media site about his firm’s bonus policy may not be engaged in concerted activity if he fails to seek action from co-workers and his comments are directed to friends or family members who are not co-workers.

Even if an employee’s postings are rude or disrespectful, they still may be protected activities under the NLRA if they are considered “concerted” in nature. Concerted activity may lose legal protection only if it is so flagrant, violent, or extreme as to render the individual unfit for further service. In addition, illegal activity or deliberate lies are typically considered unprotected under the NLRA.

RISK CONTROL RECOMMENDATIONS

The following strategies can help reduce the likelihood of a lawsuit or regulatory action due to a violation of Section 7 of the NLRA associated with employee use of social media:

• Review employment policies relating to social media. Consult with an employment practices attorney to ensure that policies and procedures do not prohibit what may be deemed protected concerted activities.
• Educate partners and managers regarding protected communication and their related obligation under the NLRA. Those who supervise others should understand the importance of Section 7 and avoid interfering with employee rights to engage in concerted activity for their mutual aid and protection. Note that many states have passed or are considering passing laws prohibiting employers from requiring employee disclosure of social media usernames and passwords.
• Exercise caution when disciplining and/or terminating an employee for reasons involving social media. Examine publicly available employee online communications to determine if they concern wages and/or working conditions, and whether they may be considered protected concerted activities under the NLRA. As social media usage constitutes an evolving area of law with many nuances, consult with an employment attorney before taking action in such a situation.

The bottom line is that before disciplining or terminating an employee for posting a critical comment on Facebook, Twitter, or elsewhere, an employer must ensure that doing so does not violate the NLRA.

Laura Lapidus (laura.lapidus@cna.com) is a risk control consulting director at CNA who focuses on employment and management liability matters. Sarah Beckett Ference (sarah.ference@cna.com) is a risk control director at CNA.

Continental Casualty Co., one of the CNA insurance companies, is the underwriter of the AICPA Professional Liability Insurance Program. Aon Insurance Services, the National Program Administrator for the AICPA Professional Liability Program, is available at 800-221-3023 or visit cpai.com.

This article provides information, rather than advice or opinion. It is accurate to the best of the author’s knowledge as of the article date. This article should not be viewed as a substitute for recommendations of a retained professional. Such consultation is recommended in applying this material in any particular factual situations.

Examples are for illustrative purposes only and not intended to establish any standards of care, serve as legal advice, or acknowledge any given factual situation is covered under any CNA insurance policy. The relevant insurance policy provides actual terms, coverages, amounts, conditions, and exclusions for an insured.