Companies Must Turn Other Cheek Over Worker Facebook Rants

By: Ben James
June 16, 2011
Law 360

Employee complaints are nothing new, but social media sites like Facebook have given workers a new avenue for their gripes. While online venting may not sit well with employers, lawyers say that businesses should be cautious about taking disciplinary action over arguably insulting posts and tweets.

While it is clear that Section 7 of the National LaborRelations Act — which provides that employees have the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection" — applies to complaints in cyberspace, employers don't yet have clear guidance on what exactly constitutes protected concerted activity in the social media context, attorneys told Law360.

The National Labor Relations Board (/agencies/national- labor-relations-board)'s Hartford, Conn., office made headlines in October when it issued a complaint alleging that ambulance service American Medical Response of Connecticut, Inc. illegally fired a woman who posted negative comments about her supervisor on her personal Facebook page.

"The AMR (/companies/amr-corporation) complaint is really where the board started to draw attention to the intersection between social media activity and the NLRA," Littler Mendelson PC (/firms/littler-mendelson)'s Philip Gordon said.

That case was settled in February, but the NLRB has issued other complaints involving social media sites since, including a recent complaint against a Chicago-area luxury car dealership that fired a sales employee over a message he posted on Facebook.

"The board wants to try to get out in front of the social media issue," Paul Hastings Janofsky & Walker LLP (/firms/paul-hastings)'s Brad Newman said.

More NLRB complaints involving social media are said to be in the works, and attorneys expressed hope that as these cases unfold — and potentially lead to appellate challenges — the rules on when an employer can take action against a worker based on social media postings will become clearer.

At least in theory, the rules for what Section 7 protects are the same for face-to-face interactions and other traditional means of communication as they are for social media.

To be covered by the NLRA, an employee's activity has to be protected and concerted, said Marshall Babson, a partner at Seyfarth Shaw LLP (/firms/seyfarth-shaw).

Since the board's decision in a case called Meyers Industries in 1986, concerted activity is activity undertaken on behalf of two or more individuals, or ratified, underwritten or subscribed to by two or more individuals, explained Babson, who also served on the NLRB from 1985 to 1988.

"I don't know how social media will fit into that definition," he said. "Social media may, in some ways, set slightly different boundaries or give us a different understanding of what it means to be engaged in protected concerted activity."

Whether an online colloquy by an employee who posts a complaint about working conditions on a social media site and draws a response from a co-worker who disagrees with that complaint constitutes protected concerted activity is a gray area, said Reid Bowman, general counsel of workplace compliance training firm ELT Inc.

That online back-and-forth would likely be protected, according to Babson, who added that a workplace-related social media posting, with its potential for reaching large numbers of people, could arguably be seen as a clarion call to workers. An employer that targets a worker for discipline in that situation would have a "tough case," he said.

"[But] it underscores that there are a host of unanswered questions about the metes and bounds of protected and concerted activity in social media," Babson said.

He said the standard for whether the activity at issue is protected was laid out in the U.S. Supreme Court's 1966 ruling in Linn v. Plant Guard Workers, a case over whether the NLRA barred a state law libel suit.

The high court in Linn adopted the logic of its 1964 decision in New York Times Co (/companies/new-york-times-co). v. Sullivan, which established that printed or spoken words are actionable — not protected — if the publisher or speaker has knowledge of their falsity or acts with reckless disregard for the truth or falsity of the statement at issue, according to Babson.

But while an employer has a right to not be defamed, there's no law against saying unkind things, he added.

"Employees have a fundamental right to complain about work and working conditions, including the people with whom they work," Babson said. "It's a rich American tradition to complain."

That right has existed since the NLRA was enacted in 1935, he noted, adding that the advent of social media websites hasn't altered the law, but has made workers' criticisms more apparent and "more challenging for people who have thin skins."

Even racist, sexist or homophobic comments in the context of protected concerted activity can cause a problem for employers, forcing them to choose between a potential discrimination claim and a possible NLRB complaint, Bowman said.

“This creates one of those awful situations for employers where they literally have to choose which lawsuit they want to defend,” he said.

Of course, negative statements about an employer or supervisor are not always protected.

If an employee isn't trying to communicate with other workers, or launches into a rant filled with name-calling and negative comments unrelated to the work environment, the NLRA won't shield him or her from discipline, Gordon said.

Revealing trade secrets or other confidential information can also be legitimate grounds for discipline, Bowman said.

But it's likely that employees who are disciplined or terminated for something they say on a social media site will try to argue that they were trying to communicate for the good of their fellow employees, Newman said.

And while there's no private right of action under the NLRA, private plaintiffs attorneys representing workers who have faced discipline over online complaints will likely use the threat of filing an NLRB charge as bargaining leverage, Bowman said.

Employers and managers need to be aware that Section 7 applies to all employees, not just those in labor unions, attorneys said.

Given the low levels of unionization in the private sector, many current managers have never worked in a unionized environment and may not be familiar with the NLRA, Bowman pointed out.

"I don't think many employers, particularly employers in nonunionized workplaces, ever focused on the possibility that terminating an employee for defaming or disparaging a supervisor on the Web might be illegal," Gordon said.

Employers considering taking action against an employee over workplace-related complaints voiced in the social media sphere need to evaluate the potential risk of ending up in the NLRB's cross-hairs, and act accordingly, lawyers advised.

"They have to proceed with caution," Gordon said.

It may be tough to swallow, but sometimes, responding to a worker's online gripe just adds fuel to the fire, and the smartest thing to do is ignore it, Bowman said.

"Sometimes companies just have to have thick skin," he said.

Reprinted with permission from Law 360. This piece originally ran on June 16, 2011 and can be found online at http://www.law360.com/employment/articles/246017/cos-must-turn-other-cheek-over-worker-facebook-rants-.