NLRB bolsters private-employee speech

Wednesday, September 14, 2011

In recent years, both public and private employers have experienced the disruption and despair that occurs when a disgruntled employee takes to Facebook to air his or her work grievances.

Unlike public employers, however, private employers have felt free to discipline or fire these employees. Private employers, after all, are not constrained by the First Amendment and need not recognize anyone’s freedom of speech. Moreover, private employers in most states and in most circumstances employ their employees at will, meaning the employers’ management decisions cannot be challenged unless those decisions discriminate against an employee because of the employee’s age, gender or other protected characteristic.

Suddenly, however, the discretion private employers have enjoyed is diminishing. As Lafe E. Solomon, acting general counsel for the National Labor Relations Board, explained in a report released on Aug. 18, the NLRB now maintains that the National Labor Relations Act protects some employee social-media activity. As a result, private employees now have more freedom of speech than their government counterparts.

Intended to protect employees’ right to unionize, the NLRA prohibits private employers from, among other things, interfering in employees’ attempts to engage in concerted activity. These attempts, the board traditionally has held, include discussions among coworkers about the terms and conditions of their employment. As the board now is applying that tradition to today’s technology, those employee discussions need not be private and may take place in social media open to all.

In the report, Solomon detailed the board’s handling of 14 cases in which unfair labor practice charges arose out of social-media postings or policies. In half of those cases, the board found that the employers had violated the NLRA; in the other half, the board found the employers’ actions were lawful. In cases involving social-media postings, a fact critical to the board’s determination was whether the postings were directed at or discussed with coworkers.

In one case, for example, a salesman for a luxury automobile dealership criticized his employer on his Facebook page about a sales event the employer had conducted. His online comments — which concerned primarily the employer’s choice of low-budget refreshments — were consistent with criticisms other employees had expressed among themselves before and after the sale. Shortly after learning of the postings, the employer fired the salesman.

The board concluded that the firing violated the NLRA. The posting, Solomon wrote, was a “direct outgrowth” of the sales staff’s earlier, protected discussion.

The employee “was vocalizing the sentiments of his coworkers and continuing the course of concerted activity that began when the salespeople raised their concerns at the staff meeting,” Solomon continued. “Further, we concluded that this concerted activity clearly was related to the employees’ terms and conditions of employment. Since the employees worked entirely on commission, they were concerned about the impact the Employer’s choice of refreshments would have on sales, and therefore, their commissions.”

In another case, the board determined that an employer did not violate the law when it terminated a bartender who posted messages on his Facebook page criticizing the employer’s tipping policy and complaining about the employer’s customers. The firing was lawful, the board said, because the postings did not involve concerted activity.

“We found no evidence of concerted activity here,” Solomon explained. “Although the employee’s Facebook posting addressed his terms and conditions of employment, he did not discuss the posting with his coworkers, and none of them responded to the posting. There had been no employee meetings or any attempt to initiate group action concerning the tipping policy or raises.”

In the report, Solomon also warned that many private employers’ social-media policies are overbroad and thus unlawful.

In one policy reviewed by the board, a hospital prohibited employees from using any social media that might infringe on others’ reasonable expectations of privacy, from posting any message that might embarrass, harass or defame a hospital employee or officer, and from posting any false statement that might damage the hospital’s reputation or goodwill.

After the hospital disciplined a nurse for posting a message critical of another employee’s absenteeism and then terminated the nurse for posting a statement critical of the hospital, the nurse reported the hospital to the board. The board found that the hospital’s social-media policies violated the NLRA because while potentially well-meaning, they unlawfully limited employees’ ability to discuss wages and other terms and conditions of their employment.

Employees’ social-media speech will not lose its protection, Solomon wrote, merely because it is defamatory, false or offensive. False speech, he noted, is protected unless it is “maliciously false.” Similarly, cursing and insults are protected unless they are significantly outside the realm of normal workplace conduct.

Taken together, the NLRB’s policies afford private employees considerably more protection than public employees enjoy. Since the U.S. Supreme Court five years ago decided in Garcetti v. Ceballos that speech made pursuant to a public employee’s official duties is not constitutionally protected, lower courts consistently have held that if public-employee speech addresses a matter of private interest — such as wages or most conditions of employment — a public body, acting in its capacity as employer, can terminate or discipline the employee. Those public employees cannot claim protection under the NLRA, as the act does not apply to government employers.

So far, no employer has challenged the board’s social-media positions in court. Some employers therefore are not convinced that the board’s positions will remain good law. Until a court strikes down the positions, however, the NLRA will protect private employees more than the First Amendment protects public employees.

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