Fayette County Bar Association, July/August 2011 newsletter. For a PDF version of the article click here.
McBrayer Newsletter, June 2011, Volume 1, Issue 3. To view the June 2011 newsletter please click here.
It is old news that working-aged people are increasingly utilizing social media, both in and out of the workplace. In fact, a recent Pew Research Institute study found that 60-69% of Generation Xers (34-45) and approximately one-half of Baby Boomers (46-64) now engage in social networking. Late last year, by several accounts, Facebook even surpassed Google to become the most popular Internet site. 
As a result of these trends, social media data has become a notable consideration for employers — as part of the hiring process, as a marketing tool, as a productivity concern — and increasingly as a material factor in employment litigation. Some social media considerations present new opportunities and oversight for employees, while others require prudence to avoid unforeseen liabilities. To deal with these novel considerations, most employers have considered, if not implemented, social media-specific employee policies to complement their pre-existing workplace policies and procedures. It is essential, however, that such policies are narrowly tailored to the individual company's goals and concerns, as well as to emerging trends in employment law.
Often such trends become evident from, and may even be fed by, initial agency decisions and apparent agency emphasis. Recently, one such trend has emerged via National Labor Relations Board ("NLRB") actions. The NLRB governs unfair labor practices within both unionized and non-unionized workplaces.  Pursuant to the National Labor Relations Act ("NLRA"), 29 U.S.C. §151 et seq., the NLRB has recently revealed that it has not overlooked the impact of social media on its mission. 
The NLRA protects, among other statutory rights, "concerted activities."  The right to engage in "concerted activities" includes, in general terms, employees' rights to act together, with or without a union (at-will employees),  to improve working terms and conditions, including wages, benefits, and their workplace environment. In practice, "concerted activities" may include, for example, two or more employees meeting with their employer to talk about increasing their pay rate or other benefits, two or more employees speaking with their supervisor about an undesirable working condition or situation, or perhaps most frequently, two or more employees discussing their pay or other work-related issues with each other. Traditionally, these "concerted activities" occurred within settings or via mediums which were obvious to, and often controlled by, the employer. The employer's existing communications policies and/or general employment policies regarding employee communications — around the water cooler, in their supervisor's office, on the phone or via company email — thus clearly governed. It appears, however, that the definition of "concerted activities" is expanding to include social media networks and applications (Facebook, MySpace, Twitter, etc.), both during and outside work hours and locations.
Three recent NLRB actions, each unique but clearly linked to one another, have clarified that social networking communications are on its radar screen, and included in the "concerted activities" it will protect. In fact, such communications appear to be a current agency focus.
In October 2010, the NLRB filed a complaint against a Connecticut ambulance company, American Medical Response ("AMR"), after it fired Dawnmarie Souza ("Souza"). Souza was fired approximately one month after she logged onto her home computer and posted derogatory comments about her boss and her employer on her Facebook page.  Co-workers thereafter commented favorably on her posts. Such a firing may appear, without more analysis, to be both reasonable and relatively common. However, the NLRB's unfair labor practices complaint alleged that the firing violated Section 8(a)(1)  of the National Labor Relations Act. The NLRB argued that AMR interfered with Ms. Souza's right to engage in "protected concerted activity," specifically to engage in discussions with co-workers regarding the condition of her employment. Though her employer claimed that she was fired for acts which precipitated a number of patient complaints against her, the NLRB maintained that not only was she illegally fired for posting comments on Facebook,  but that AMR's "blogging and Internet posting policy" was overly broad. Though the NLRB's Complaint does not represent a final decision, it did occur after a period of investigation and signal a new area of concern for employers. Previously, the NLRB had appeared to consistently support employers' rights to maintain order in the workplace, at least with respect to the Internet and social media. In fact, by contrast, in late 2009, the NLRB issued an Advice Memorandum concluding that Sears Holdings' similar social media policy did not adhere its employees' NLRA Section 7 rights.  Fortunately for the parties, but unfortunately for further analysis, the parties settled the matter this February 2011 when AMR agreed to, among other things, revise its overly broad rules regarding employee internet communications to make sure that they did not improperly restrict employees.  Souza's personal discharge was resolved privately.
Another social media firing, this time precipitated by tweets, did not have the same outcome. A reporter for the Arizona Daily Star was encouraged to tweet to promote the paper and disseminate information to the public through social media applications. The newspaper was still in the process of developing its formal social media policies. He did as he was instructed, via a personal account which clearly identified his affiliation with the newspaper, and which was linked to his Facebook and MySpace accounts to affect his tweets to be posted on those sites as well. After several of his tweets painted his city (Tucson), the newspaper, and a local television station in a negative light, he was warned about the nature of his tweets, told not to tweet about anything work-related, and advised to use another, less public, avenue to air his grievances. A week later, the newspaper terminated his employment, citing its lack of confidence that he could conform to its "expectation of professional courtesy and mutual respect." The NLRB noted the employer's discipline — restricting all work-related tweets — was overly broad and warned that if similar restrictions were proclaimed as new employee rules, such policies would likely violate the NRLA's protections on "concerted activities." However, the NLRB ultimately issued an Advice Memorandum finding the firing was lawful, because his tweets "did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment," and because he had been given the opportunity to address his working conditions through other channels and processes.
Indicating that the Arizona Daily Star dismissal was very fact specific, just last month the NLRB issued an unfair labor practices complaint against Hispanics United of Buffalo, alleging that the nonprofit illegally fired five employees for criticizing working conditions on Facebook.  This complaint addresses multiple firings that resulted from what can only be described as a virtual water cooler discussion among co-workers, albeit this time in a quasi-public forum within view of an unknown number of non-employees. In sum, one employee posted to her Facebook wall that one of her co-workers had alleged to her that certain other co-workers were not doing enough to help their employer's clients. Her post led to some of her co-workers commenting on her post in their own defense. Shortly thereafter, the participating Facebook users were fired. The NLRB argues that the employer, Hispanics United of Buffalo, violated federal law by not allowing employees to engage in "concerted activities," specifically discussing their jobs and working conditions with one another on Facebook.  In its defense, the employer responded that the employees' were, instead, discharged for harassing the co-worker who made the initial allegation. At the time this article was written, arguments were set to be heard by an Administrative Law Judge on June 22nd.
Though the outcome of this latest case is yet unknown, and the impact of the two prior cases somewhat unclear, it is very apparent that the NLRB intends to address social media communications as part of the NLRA, and to treat them similarly to old-fashioned water cooler conversations, regardless of when or where they occur.  Further, some state statues (perhaps including statutes in California, New York, North Dakota and Colorado, which prohibit adverse employment actions based on lawful activities off the premises during nonworking hours ) may protect workers who engage in such social media communications. As such, it is important for companies to avoid thoughtlessly implementing overly broad or generic social media policies, and to narrowly tailor such policies in light of the National Labor Relations Act, applicable state statutes, and their company goals and peculiarities. It is also important to think twice before firing an employee based upon undesirable social media communications and to seek counsel when appropriate.
 See Pew Research Center, Kathryn Zickuhr, Generations Online 2010, December 16, 2010, available at http://pewinternet.org/Reports/2010/Generations-2010.aspx; See also, Pew Research Center, Computer and Cell Phone Usage Up Around the World: Global Publics Embrace Social Networking, December 15, 2010, available at http://pewglobal.org/2010/12/15/global-publics-embrace-social-networking.
 The NLRB maintains jurisdiction over most employers (exceptions apply for federal and state governments), and the interstate commerce threshold is frequently satisfied. 29 U.S.C. § 157 (2010); See 29 U.S.C. § 152(2) (2010); . Though the NLRB has adopted certain rules regarding when they will not assert jurisdiction, the NLRB's unfair labor practices rulings may still be a relevant consideration for all companies attempting to draft or revise their social media policies.
 29 U.S.C. §153 (creating the NLRB); 29 U.S.C. §151 ("It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.").
 29 U.S.C. §157 ("Employees shall have the right to . . . engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .").
 29 U.S.C.A. § 157; Citizens Inv. Servs. Corp. v. N.L.R.B., 430 F.3d 1195, 1197 (D.C. Cir. 2005) ("[t]he broad protection of Section 7 applies with particular force to unorganized employees who, because they have no designated bargaining representative, must 'speak for themselves as best they [can].'" ( quoting NLRB v. Washington Aluminum Co., 370 U.S. 9, 14 (1962).
 American Medical Response of Connecticut, Inc., No 34-CA-12576, Complaint and Notice of Hearing (Oct. 27, 2010).
 Section 8(a) (1) prevents employers from interfering with employees' Section 7 rights. Pursuant to Section 7, employees may discuss the terms and conditions of their employment with co-workers and others.
 It is noteworthy that the NLRB also claimed that she was illegally denied union representation and that her posts may have been responsive to that denial.
 Sears Holdings' policy prohibited its employees from disparaging the "company's or competitors' products, services, executive leadership, employees, strategy, and business prospects". Advice Memorandum, NLRB Office of General Counsel (Dec. 4, 2009).
 Press Release, NLRB, Settlement Reached in Case Involving Discharge for Facebook Comments (Feb. 8, 2011), available at http://www.nlrb.gov/news/settlement-reached-case-involving-discharge-facebook-comments.
 Hispanics United of Buffalo, No. 03-CA-027872, Complaint and Notice of Hearing (issued May 9, 2011) (not yet posted to NLRB website).
 It is significant that this case again focuses on Facebook wall posts rather than more private inbox or chat discussions, as it did in Souza's case.
 It has also been reported that the NLRB has investigated 20-plus Facebook-related complaints this year, but the precise nature of these complaints and their resolution is unknown because they settled privately.
 CAL. LAB. CODE §96(k); N.Y. LAB LAW §201- d (3) (a); N.D. CENT. CODE §14-02.4-01; COLO. REV. STAT. §24-34-402.5(1).