Social Media Policies After the NLRB Facebook Firing Case Settles: What are Employers to Do?

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1 Labor & Employment Alert February 2011 Social Media Policies After the NLRB Facebook Firing Case Settles: What are Employers to Do? By Marion B. Johnson and Meredith R. Murphy In American Medical Response (AMR), a Connecticut ambulance service company terminated an employee after she posted negative comments about the employer and her supervisor on her Facebook page. See American Medical Response of Connecticut, Inc., Case No. 34-CA (Region 34, NLRB). The employee s comments allegedly included not only profanity but also referred to her supervisor as a psychiatric patient and scumbag. Following an investigation, on October 27, 2010, the NLRB issued a complaint against AMR, alleging that the discharge violated Section 7 of the National Labor Relations Act because the terminated employee engaged in protected activity when she posted comments about her supervisor on Facebook and responded to further comments from her co-workers. The case came to be known as the Facebook Firing case, and many employers and attorneys have been anxiously awaiting the National Labor Relations Board s (NLRB) ruling. In the NLRB s view, the employee s electronic exchanges constituted an exercise of her protected right to discuss the terms and conditions of her employment. Specifically, the NLRB charged that AMR s policy maintained overly broad rules regarding blogging, internet posting and communications between employees. The AMR policy included the following restrictions: > > Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the EMSC Vice President of Corporate Communications in advance of the posting; and > > Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee s superiors, co-workers and/or competitors. The day before the scheduled hearing, the NLRB announced that it had approved a settlement, under which AMR agreed to: (1) revise its overly broad rules; (2) ensure that

2 its rules do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work; and (3) not discipline or discharge employees for engaging in such discussions. A Social Media Policy s Interference With Section 7 Rights Even in a Non-Unionized Workplace Historically, the NLRB has recognized few limits on employees Section 7 right to participate in concerted activity, which broadly protects employees right to form or join a union, to strike and, more generally, to discuss the terms and conditions of employment. Federal law encourages vigorous debate and permits intemperate and abusive language during organization campaigns and other labor disputes. Davis Co. v. Furniture Workers, 109 LRRM 3192 (6th Cir. 1982). Even general policies or standards of conduct may run afoul of the NLRA if they would reasonably tend to chill employees in the exercise of their Section 7 rights. Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998). Federal labor law does not seem to keep pace with current technology developments. In the Facebook Firing case, the NLRB took the position that a company s social media policy violates the NLRA because it can have a chilling impact on protected concerted activity. Under the current law, an employer could face an NLRB unfair labor practice charge even if the employer is not unionized and even if no disciplinary action has been taken. The mere existence of a social media policy that is viewed as limiting or discouraging protected employee conduct could result in a charge or even a complaint filed by the NLRB. In fact, just this month the Connecticut State Employees Union filed an unfair labor practice charge against a Connecticut bus company containing no specific allegations that the employer improperly disciplined any particular employee. Rather, in Case No. 34-CA-12906, filed in the Regional Office for Region 34 (based in Hartford, Connecticut), the union charged that the employer violated Section 8(a)(1) of the NLRA by maintaining policies in a handbook prohibiting the use of electronic communications or social media that might target, offend, disparage, or harm customers, passengers, or employees; or in a manner that might violate any other company policy. Although employers have a legitimate interest in protecting against disclosure of trade secrets, trademarked, copyrighted and other private information, they are not permitted to restrict employees use of social media and the Internet to unionize, bargain collectively and, generally, discuss the terms and conditions of their employment. Evolving Nature of Social Media Social media has become a catch-all term encompassing a broad array of new and revolutionary forms of electronic communication. Sites such as Facebook and Twitter have received much media attention, but employees can and do communicate through other forms of social media including Skype, Yahoo! Groups, personal blogs and other chat platforms. Employer policies and practices must keep pace with the latest technology and case law applicable to this developing area. 2

3 What Should Employers Do? > > Review Your Policy: The constantly changing realm of social media requires regular review of your business social media or Internet usage policy. Both unionized and non-unionized employers must evaluate their policies to ensure that they are not overly broad and the content does not chill employees right to engage in protected concerted activity. The key to the settlement reached between the NLRB and AMR was the employer s agreement to tailor its social media policy which, in pertinent part, had prohibited employees from depicting the company in any way without permission and from making disparaging remarks when discussing the company or supervisors. > > What Your Policy Should Not Say: A policy that prohibits the following conduct and statements may run afoul of the NLRA and/or invite an unfair practice charge: Prohibits individuals from identifying themselves as employees of the employer; Prohibits employees from making comments regarding their employment, including disparaging comments; and Prohibits employees from discussing the terms and conditions of their employment. What Your Policy Should Say: Your Social Media Policy should define its scope, explaining that it includes all Internet-based communications, including -- but not limited to -- personal blogs, message boards, microblogging sites such as Twitter, social networking sites such as Facebook, MySpace and LinkedIn as well as other websites and chat forums. Under FTC requirements, employees should be reminded of their obligation to disclose that they are an employee of their employer whenever they communicate information about the employer. When employees identify themselves in this manner, they should be encouraged to make it clear that the comments reflect their own thoughts and opinions and not those of their employer. See New Federal Trade Commission Guidelines on Use of Endorsements And Testimonials in Advertising Increase Employers Liability Concerns About Employees Participation in Social Media, Marion B. Johnson, January 27, Any Social Media Policy should remind employees that they are prohibited from disclosing the employer s confidential information or its customers private information. Examples specific to an employer s business should be provided. For example, a health care employer should remind employees of their obligations not to disclose a patient s protected health information under HIPAA. 3

4 The policy should also remind employees that they are prohibited from disclosing trade secrets, copyrighted or trademarked information. A Social Media Policy should inform employees that they may discuss their wages and other terms and conditions of employment. We also recommend that your Social Media Policy caution employees that online comments not only reflect upon the employer but also upon the employee, individually, and his or her coworkers. As such, employers may ask that employees carefully consider what they say in any social media forum and how those statements may impact others. > > Review Statements Regarding Disciplinary Action. A social media policy that threatens discharge or discipline for the use of social media to communicate regarding an employee s work may invite trouble with the NLRB. The social media and discipline sections of any handbook or policy manual should be reviewed to determine whether they are written appropriately. > > Proceed With Caution if an Organizing Campaign is Underway. In an Advice Memorandum issued by the NLRB on December 4, 2009, the board noted that it will look closely at whether a social media policy was enacted in response to protected union-related activities. See Sears Holdings (Roebucks), Case 18-CA Employers should be conscious of timing when implementing a social media policy in the first instance, to avoid any appearance that the policy was enacted in response to or because of employees protected activity. > > Strike a Balance. Employers have a right to protect their public image both on the Internet and elsewhere. A well-written policy can achieve the employer s goals without violating employees NLRA and First Amendment rights while protecting the employer s appearance on the Internet. 4

5 Should you require further assistance with regard to the information set forth in this alert, please contact Marion B. Johnson at or (973) or Meredith R. Murphy at or (973) or contact any partner in Drinker Biddle s or your regular Drinker Biddle contact. Thomas J. Barton (215) Thomas.Barton@dbr.com Edmund D. Cooke, Jr. (202) Edmund.Cooke@dbr.com Stephanie Dodge Gournis (312) Stephanie.DodgeGournis@dbr.com Mark E. Furlane (312) Mark.Furlane@dbr.com Kate S. Gold (310) Kate.Gold@dbr.com Gerald S. Hartman (202) Jerry.Hartman@dbr.com Laurie A. Holmes (312) Laurie.Holmes@dbr.com Gregory W. Homer (202) Gregory.Homer@dbr.com Alan S. King (312) Alan.King@dbr.com Kathryn H. Levering (215) Kate.Levering@dbr.com O Kelly E. McWilliams III (202) OKelly.McWilliams@dbr.com Mark D. Nelson (312) Mark.Nelson@dbr.com Cheryl D. Orr (415) Cheryl.Orr@dbr.com David H. Raizman (310) David.Raizman@dbr.com John A. Ridley (973) John.Ridley@dbr.com Heather M. Sager (415) Heather.Sager@dbr.com K. Bruce Stickler (312) Bruce.Stickler@dbr.com Helen E. Tuttle (973) Helen.Tuttle@dbr.com David J. Woolf (215) David.Woolf@dbr.com Other Publications Sign Up /publications /publications/signup 2011 Drinker Biddle & Reath LLP. All rights reserved. A Delaware limited liability partnership Jonathan I. Epstein and Edward A. Gramigna, Jr., Partners in Charge of the Princeton and Florham Park, N.J., offices, respectively. This Drinker Biddle & Reath LLP communication is intended to inform our clients and friends of developments in the law and to provide information of general interest. It is not intended to constitute advice regarding any client s legal problems and should not be relied upon as such. CALIFORNIA DELAWARE ILLINOIS NEW JERSEY NEW YORK PENNSYLVANIA WASHINGTON DC WISCONSIN 5