March 14, 2012

NLRB's Report on Social Media Cases: Lessons for Healthcare Employers

Holland & Knight Alert
Kenneth A. Jenero

The National Labor Relations Board (NLRB) has continued to provide guidance to employers on developing labor law issues associated with employee use of social media, including Facebook, Twitter and other online technology tools. In January 2012, the NLRB’s acting general counsel (GC) issued a report on cases addressing the lawfulness of employers’ social media policies and rules under the National Labor Relations Act (NLRA), and the protected and/or concerted nature of employees’ social media postings. The GC noted that the NLRB’s treatment of these issues continues to be a “hot topic” among lawyers, human resources professionals, the media and the public. Although the underlying legal principles apply across all industries, the GC’s report includes several examples of the application of the principles to healthcare employers, including hospitals, clinics and testing laboratories. This alert summarizes the GC’s report and sets forth specific lessons for healthcare employers.

Legal Framework

The NLRB’s involvement in the area of social media stems from Section 7 of the NLRA, which gives non-supervisory employees the right to engage in “concerted” activity for mutual aid and protection. This right extends to union and non-union employees alike. Section 7 has been interpreted to allow employees to discuss, comment on, complain about and seek to change or improve their wages, benefits and working conditions. It also permits employees to express concerns about how they are treated at work, discipline and discharge issues, and other matters relating to their terms and conditions of employment. Employers must consider the impact of the NLRA when developing and implementing social media policies, and deciding whether to discipline or discharge employees for critical, derogatory, unprofessional or other inappropriate social media posts.

To be covered by Section 7, an employee’s activity (i.e., social media posts) must be “concerted” and “protected.” An employee’s activity is “concerted” when he or she (1) acts with or on the authority of other employees and not solely by and on behalf of himself or herself; (2) seeks to initiate, induce or prepare for group action; or (3) brings authentic group complaints to the attention of management. Factors leading the NLRB to conclude that social media posts are concerted include the following:

  • They relate to earlier discussions among employees about the issue.
  • They relate to earlier discussions with management about the issue.
  • They ask for the assistance of other employees with respect to the issue.
  • They reference future efforts to discuss the issue with the employer.
  • Other employees respond to the posts and support the concerns as a group.

The NLRB asks two questions when determining whether an employee’s social media post is protected:

    1. Is it about employees’ terms and conditions of employment?
    2. Is it so opprobrious, disloyal, malicious, or disruptive to workplace discipline as to lose the protection of the NLRA?

Social media policies are unlawful under the NLRA if they explicitly restrict activities protected by Section 7. Policies that do not explicitly restrict such activities also will violate the NLRA if any of the following occurs:

  • Employees would reasonably construe the language to prohibit Section 7 activity.
  • The policy was promulgated in response to union activity.
  • The rule has been applied to restrict the exercise of Section 7 rights.

Unlawful social media policies constitute unfair labor practices under the NLRA and subject the employer to cease-and-desist and notice-posting remedies. Unlawful policies maintained during all or part of the “critical period” between the filing of a union election petition and the date of the election can be used to set aside the election results - even if the policies were not enforced. In essence, they guarantee the union a “second bite of the apple.” Disciplining or discharging an employee pursuant to an unlawful social media policy constitutes an independent unfair labor practice when the employee violated the policy by engaging in Section 7-protected activity. The offending employer is subject to an additional make-whole remedy, which includes reinstating the discharged employee and compensating him or her for any lost wages and benefits.

Representative Healthcare Cases

Case One

A particularly interesting case addressed in the GC’s report involved an employer that operated clinical testing laboratories throughout the United States. The employer had issued a revised communications policy on its intranet to its approximately 30,000 employees. The revised policy included several provisions that the GC found to be unlawful under the NLRA.

The social media policy prohibited employees from disclosing or communicating 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. The GC noted that a rule that precludes employees from discussing terms and conditions of employment, or sharing information about themselves or their fellow employees with outside parties, violates the NLRA. According to the GC, the policy at issue was unlawful because employees would reasonably understand it as prohibiting them from communicating with third parties about Section 7 issues such as wages and working conditions. In addition, the policy failed to provide any context or examples of the types of information that the employer deemed confidential, sensitive or non-public in order to clarify that it did not prohibit Section 7 activity. The policy also was found to be unlawful to the extent that it required employees to obtain prior employer approval before engaging in protected activities.

Another provision of the policy prohibited use of the company’s name or service marks outside the course of business without prior approval of the law department. The GC observed that employees have a Section 7 right to use their employer’s name or logo in conjunction with protected concerted activity, such as to communicate with fellow employees or the public about a labor dispute. The provision at issue was found to be unlawful because it could reasonably be construed to restrict employees’ Section 7 rights to use the employer’s name and logo while engaging in protected activity in electronic or paper leaflets, cartoons or picket signs in connection with a protest involving terms and conditions of employment. Although the GC recognized that an employer has a proprietary interest in its service marks, trademarks and copyrighted materials, he concluded that this interest would not be infringed by the employees’ non-commercial use of a name, logo or other trademark to identify the employer in the course of Section 7 activity.

The policy also prohibited employees from publishing any representation about the company without prior approval by senior management and the law department, including statements to the media, media advertisements, electronic bulletin boards, weblogs and voice mail. The GC noted that employer rules that prohibit employees from communicating with the public or the media about Section 7-protected subjects, or that require prior authorization for such communications, are unlawfully overbroad. The policy at issue was unlawful because it restricted all public communications regarding the company, which would include protected Section 7 communications.

In another provision of the policy, the employer required that social networking site communications be made in an honest, professional and appropriate manner, without defamatory or inflammatory comments regarding the employer, its subsidiaries, or their shareholders, officers or employees. According to the GC, this provision was unlawful because employees would reasonably construe broad terms, such as “professional” and “appropriate,” to prohibit them from communicating on social network sites with other employees or with third parties about work-related concerns protected by Section 7.

The policy also required employees to first discuss with their supervisor or manager any work-related concerns, and provided that failure to comply could result in corrective action, up to and including termination. The GC concluded that this provision unlawfully restricted Section 7 activity by requiring employees, on threat of discipline, to first bring any work-related concerns to management.

Case Two

In this case, the GC concluded that a company that employed phlebotomists maintained a social media policy that was overbroad, but that the specific Facebook posts at issue were not protected under the NLRA. One of the company’s phlebotomists, who had a history of conflict with several co-workers, was blamed for the discharge of another employee and became the target of co-workers’ insults and threats. In frustration, the phlebotomist posted angry and profane comments on her Facebook wall, ranting against co-workers and the employer, and indicating that she hated people at work, that they blamed everything on her, that she had anger problems and that she wanted to be left alone. One co-worker commented that she had gone through the same thing. Two other employees read these posts and provided them to the employer. The responsible phlebotomist was informed that the employer had received a complaint regarding her Facebook postings; she was issued a written warning for violating the employer’s social media policy and eventually was terminated for multiple violations of the policy.

The company’s social media policy prohibited employees from using social media to engage in unprofessional communication that could negatively impact its reputation or interfere with its mission and unprofessional/inappropriate communication regarding fellow employees. The GC concluded that this policy was unlawful because its prohibitions would reasonably be read to include protected statements that criticized the company’s employment practices, such as employee pay or treatment. In addition, the policy contained no limiting language excluding Section 7 activity from its prohibition.

The GC also concluded, however, that the company’s discipline and discharge of the phlebotomist was lawful because her Facebook postings were not protected concerted activity under the NLRA. In reaching this conclusion, the GC noted that the employee’s Facebook postings expressed her personal anger with co-workers and the employer, were made solely on her own behalf and did not involve the sharing of common concerns. The postings also contained no language suggesting that the employee sought to initiate or induce co-workers to engage in group action.

Case Three

In another case, the GC concluded that the employer - a hospital - violated the NLRA by disciplining and discharging a nurse because of messages he posted online over a period of several months. In the posts, the nurse:

  • asserted that the hospital’s conduct had contributed to an incident in which a recently discharged employee killed himself and a supervisor and critically wounded another supervisor
  • criticized the hospital’s “management style” and accused the hospital of “abuse” of its employees
  • asserted that the hospital’s paradigm of corporate abuse had led to the destruction of life at the hospital
  • claimed that the hospital’s management style was far worse than bullying, that employees who stood up to management were isolated and attacked, and that personal information was used in attempts to destroy employees
  • asserted that under the leadership of the hospital’s CEO, there had been multiple unfair labor practices filed, forced policy changes, a murder/suicide, unfair firings, harassment and workplace bullying

In concluding that the nurse’s online posts constituted protected concerted activity under the NLRA, the GC first noted that the comments and communications for which the nurse was terminated were related to and in the context of labor disputes with the hospital (e.g., criticisms of the hospital’s management style and mistreatment of employees). In addition, the nurse’s statements also were the logical outgrowth of other employees’ collective concerns, were made with or on the authority of other employees and were widely approved by fellow employees.

The GC also concluded that the nurse’s statements did not cross the line into unprotected public or disparaging attacks upon the quality of the hospital’s services (i.e., the delivery of healthcare); instead, they were general criticisms of the employer’s treatment of employees and their working conditions. Similarly, the statements were not unprotected defamation because they were not made with knowledge of their falsity or reckless disregarding for their truth or falsity; instead, they generally were fact-based and accurate statements of opinion or figurative expression.

Other Social Media Rules Deemed Unlawful

In other cases addressed in the GC’s report, the following provisions in social media policies also were found to be unlawful under the NLRA:

  • A provision prohibiting employees from making disparaging comments about the company through any media, including online blogs or other electronic media. According to the GC, this rule would reasonably be construed to restrict Section 7 activity, such as statements that the employer is not treating employees fairly or paying them sufficiently and contained no limiting language that would clarify that it does not restrict Section 7 rights.
  • A provision providing that in external social networking situations, employees should generally avoid identifying themselves as the employer’s employees, unless discussing terms and conditions of employment in an appropriate manner. According to the GC, the rule’s reference to “appropriate” discussions of terms and conditions of employment was overly broad and implicitly prohibited “inappropriate” discussions of subjects protected by Section 7, the rule did not define what was “appropriate” and “inappropriate” through specific examples, and it failed to contain limiting language that would exclude Section 7 activity.
  • A rule prohibiting discriminatory, defamatory or harassing web entries about specific employees, work environment, or work-related issues on social media. According to the GC, the listed prohibitions, which contained broad terms such as “defamatory” and applied specifically to discussions about work-related issues, would arguably restrict Section 7-protected criticism of the employer’s labor policies and treatment of employees.

The Bottom Line

The overarching principles derived from the GC’s latest report on social media cases are as follows:

  • The GC continues to find unlawful provisions in social media policies that employers instinctively view as necessary and appropriate to protect their legitimate business interests.
  • The GC continues to apply a case-by-case, fact-based analysis and to look at facts outside the social media postings at issue, when determining whether an employee’s activities are concerted and protected.
  • The GC’s approach makes it difficult for an employer to readily and reliably know whether an employee’s social media activities meet the threshold requirements for protection under the NLRA.
  • The GC continues to give employees substantial leeway to engage in profane, derogatory, critical and other seemingly inappropriate comments when engaging in concerted activity, without crossing the line into the realm of unprotected activity.

Recommendations for Healthcare Employers

Employers should carefully analyze their social media policies under the established and developing legal principles applied by the GC and the NLRB. Specifically, employers should consider taking the following steps:

  • eliminating provisions in social media policies that explicitly restrict Section 7-protected activities or that the GC and the NLRB have determined are unlawfully overbroad because of their chilling effect on such activities
  • defining or giving illustrative examples of terms that the GC and NLRB have identified as problematic in order to clarify that they do not apply to Section 7-protected activity
  • including in social media policies specific statements that they are not intended to restrict employees’ communications about wages, benefits, working conditions or other terms of employment

Before disciplining or discharging employees for violating a social media policy, employers should ensure that the policy itself is lawful and assess whether the employee’s related activities are concerted and protected under the NLRA. In so doing, employers will need to carefully investigate relevant facts and circumstances preceding and following the particular posts at issue, without, at that same time, engaging in unlawful interrogation of employees about their Section 7 activities.

Healthcare employers also should be mindful that although Section 7 of the NLRA only protects communications that relate to terms and conditions of employment, and generally does not protect communications that are unduly critical of the employer’s products or services, the line between protected and unprotected communications in the healthcare industry may not be so clear. The NLRB has observed that the quality of healthcare services often is so closely related to the terms and conditions of employment of healthcare employees that the two may be inseparable.

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