Employer ability to limit comment on social media

Author: LegalEase Solutions

QUESTION PRESENTED

Whether an employer has the right to limit the freedom of speech of its employees?

            If yes, what is the scope of this right?

SHORT ANSWER

An employee’s right to freedom of speech is protected under the National Labor Relations Act, 1935. The National Labor Relations Board constituted under the Act protects the rights of private sector employees. Employees have the right to engage in ‘concerted activity’ or collective bargaining including the right to jointly address concerns at work with or without a union under Section 7 of the Act. However, the scope of Section 7 is limited to activities for collective bargaining or other mutual aid or protection.

RESEARCH FINDINGS

Per Section 7 of the National Labor Relations Act, 1935 (“Act”), 29 U.S.C. § 157, an employee has the right to collective bargaining. Section 7 permits an employee to engage in concerted activity jointly or individually.

Quoting 29 U.S.C. § 157:

Right of employees as to organization, collective bargaining, etc.

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.

29 U.S.C. § 158.

Further, section 8(a)(1) of the Act makes it an unfair labor practice to interfere with employee rights guaranteed under section 7. The section, 29 U.S.C. § 158, more specifically reads as below:

“It shall be an unfair labor practice for an employer –

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.”

29 U.S.C. § 158.

Court Decisions on Concerted Activity

 

The courts “have affirmed that the term ‘concerted activity,’ as used in the NLRA, ‘clearly enough embraces the activities of employees who have joined together in order to achieve common goals.’” N.L.R.B. v. White Oak Manor, 452 Fed. Appx. 374, 379 (4th Cir. 2011) (quoting NLRB v. City Disposal Sys. Inc., 465 U.S. 822, 830, 104 S.Ct. 1505, 79 L.Ed.2d 839 (1984)). However, “‘[C]oncerted activities’ protected by the act are not limited to cases where the employees are acting through unions or are otherwise formally organized. It is sufficient that they are acting together for mutual aid or protection.” Joanna Cotton Mills Co. v. N.L.R.B., 176 F.2d 749, 752 (4th Cir. 1949) (See N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Co., Inc., 2 Cir., 130 F.2d 503).

Additionally, the courts have held that “[t]he inquiry is flexible, and ‘employees need not combine with one another in any particular way’ to support a finding of concerted activity.” Id. (quoting NLRB v. City Disposal Sys. Inc., 465 U.S. at 835, 104 S.Ct. 1505). “Indeed, ‘the lone act of a single employee is concerted if it stems from or logically grew out of prior concerted activity.’” Id. (quoting NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 265 (9th Cir.1995)). “Even ‘a conversation involving only a speaker and a listener may constitute concerted activity,’ so long as ‘the conversation was engaged in with the object of initiating or inducing or preparing for group action or … had some relation to group action in the interest of the employees.’” Id. (quoting Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d 304, 307 (4th Cir.1980)).

“Indeed, even the courts that have rejected the Interboro doctrine recognize the possibility that an individual employee may be engaged in concerted activity when he acts alone.” Id. “They have limited their recognition of this type of concerted activity, however, to two situations: (1) that in which the lone employee intends to induce group activity, and (2) that in which the employee acts as a representative of at least one other employee.” Id. (See, e.g., Aro, Inc. v. NLRB, 596 F.2d, at 713, 717 (CA6 1979); NLRB v. Northern Metal Co., 440 F.2d 881, 884 (CA3 1971)).

It is significant to note that “[t]he term ‘concerted activity’ is not defined in the Act but it clearly enough embraces the activities of employees who have joined together in order to achieve common goals.” Media Gen. Operations, Inc. v. N.L.R.B., 394 F.3d 207, 211 (4th Cir. 2005) (citing Meyers Industries, Inc., 268 N.L.R.B. 493, 494-495 (1984)).

The court in Cmty. Hosp. of Roanoke Valley, Inc. v. N.L.R.B., held that the warning notice issued to one of its nurse on the ground that the nurse made disparaging, disloyal, and discredited statement about the quality of nursing care available at the Hospital on a television interview program was unlawful. Cmty. Hosp. of Roanoke Valley, Inc. v. N.L.R.B., 538 F.2d 607, 610 (4th Cir. 1976).  The court held that the nurse’s act was within the meaning of the protected activity under the Act.

However, “[n]ot all conduct that can, in some general sense, be characterized as an exercise of a right enumerated in section 7 is afforded the protection of the Act.” Id. (citing Texas Instruments, Inc. v. NLRB, 637 F.2d 822, 830 (1981)). “Concerted activity that … constitutes insubordination or disloyalty may be found to fall outside the scope of the NLRA even if undertaken in the interest of self-organization or collective bargaining.” Id.

“The fact that an activity is concerted, however, does not necessarily mean that an employee can engage in the activity with impunity. An employee may engage in concerted activity in such an abusive manner that he loses the protection of § 7.” Id. (See, e.g., Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 729 (CA5 1970); Yellow Freight System, Inc., 247 N.L.R.B. 177, 181 (1980). Cf. Eastex, Inc. v. NLRB, 437 U.S. 556 (1978); NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956)).

“An employee, though otherwise engaging in protected concerted activity, ‘can lose the [NLRA’s] protections if his conduct is so egregious as to take it outside the protection of the Act, or of such a character as to render the employee unfit for further service.’” White Oak Manor, 452 Fed. Appx. 374, 382 (4th Cir. 2011) (quoting Consumers Power Co., 282 N.L.R.B. 130, 132 (1986)); (see also Stanford, N.Y., LLC, 344 N.L.R.B. 558, 558 (2005) (“When an employee is discharged for conduct that is part of the res gestae of protected concerted activities, the pertinent question is whether the conduct is sufficiently egregious to remove it from the protection of the [NLRA].”)). “To be stripped of the safeguards of the NLRA, an employee’s conduct must meet a high threshold of egregiousness. E.g., Media Gen. Operations v. NLRB, 394 F.3d at 213 (reaffirming that conduct ‘occurring during the course of otherwise protected activity remain[s] likewise protected unless … so violent or of such serious character as to render the employee unfit for further service’” Id. (quoting Sullair P.T.O., Inc. v. NLRB, 641 F.2d 500, 502 (7th Cir.1981))”.

When employees collaborate to criticize matters that are not related to the mutual aid or protection of the employees, this activity is not protected “concerted activity.” New River Indus., Inc. v. N.L.R.B., 945 F.2d 1290, 1295 (4th Cir. 1991).  In this case, two employees prepared of sarcastic letter related to the employer’s gift of free ice cream cones to its employees in appreciation for a new contract. The court in this case held that the employees’ conduct was not protected concerted activity within the meaning of the NLRA. Id. The court further stated that the letter was not a medium intended to resolve or call attention to conditions of employment. One of the employees had simply initiated the letter to be let the company’s gesture and therefore was not a protected activity.

“The Supreme Court has recognized that § 7 do not protect all concerted activities: it does not protect, for instance, unlawful or violent acts, acts in breach of contract, or acts of disloyalty against the employer.” Id. (citing NRLB v. Washington Aluminum Co., 370 U.S. at 17). “But apart from such exceptions, § 7 has a wide compass, providing general protection to workers’ efforts to ‘improve their lot as employees.'” Id. (quoting Eastex, 437 U.S. 556, 565, (1978)).

The National Labor Relations Board (“NLRB”) Decisions

Based on the above, an employer cannot restrict its employee’s social media activities that are protected pursuant to the rights guaranteed by the Act. Courts have not yet provided demarcating boundaries between social media communications that are lawful and those that are not. The Fourth Circuit Court held that, “[w]hether particular conduct constitutes “concerted activit [y],” as that term is used in § 7 is a question for the Board’s specialized expertise.” Alton H. Piester, LLC v. N.L.R.B., 591 F.3d 332, 337 (4th Cir. 2010). The National Labor Relations Board (“NLRB”) has identified in some of its decisions certain social media restrictions that an employer cannot impose on its employees. An employer cannot:

  1. Maintain a rule prohibiting an employee from making “disparaging or defamatory comments about [the employer], its employees, officers, directors, vendors, customers, partners, affiliates, . . . or their products/services.” Echostar Technologies, L.L.C., 27-CA-066726, 2012 WL 4321039 (N.L.R.B. Div. of Judges Sept. 20, 2012). The NLRB held that the employer’s use of the term ‘disparaging’ goes beyond proper employer prohibition and intrudes on employees Section 7 activities. Id. The “maintenance of the rule in question in the context and circumstances described chills employees Section 7 rights and therefore violates Section 8(a)(1) of the Act.” Id.
  2. Maintain a broad rule that prohibits unauthorized distribution, posting, removal, or change of any material on Company property. Costco Wholesale Corp., 358 NLRB No. 106 (N.L.R.B. Sept. 7, 2012). In this case, the company included in its employment agreement a policy restricting the employee from electronically communicating, storing, transmitting, or distributing any statements that damage the Company or defame any person’s reputation. The Board held that the policy “has a reasonable tendency to inhibit employees’ protected activity and, as such, violates Section 8(a)(1).” Id. The board prohibition imposed violated section 8(a)(1) of the Act. Id.
  3. Restrict an employee from making sarcastic comments on Facebook about an event organized by the company. The NLRB held that an employee’s sarcastic comments about a sales event, regarding the quality of food and drinks served at the marketing event, did not take the employee outside the protection of concerted activity. Karl Knauz Motors, Inc., 358 NLRB No. 164 (N.L.R.B. Sept. 28, 2012).

However, the NLRB has held that an employer may discipline an employee if its activity is not protected within the meaning of the Act. The NLRB in Karl Knauz Motors, Inc., 358 NLRB No. 164 (N.L.R.B. Sept. 28, 2012), found that the employer did not violate the Act when it discharged its sale representative for posting certain comments and photos on Facebook. Karl Knauz Motors, Inc., 358 NLRB No. 164 (N.L.R.B. Sept. 28, 2012). In this case, the sale representative posted photos and mocking comments related to an accident at a nearbyLand Rover dealership. Id. The accident took place when the customer’s son, 13-year old, was sitting in the vehicle’s driver’s seat. The vehicle accelerated over the customer’s foot and landed into a pond while the child was inside the vehicle. The NLRB held that the employee’s act was not a protected concerted activity. Therefore, the employee’s discharge was lawful. Id.

CONCLUSION

Therefore, it appears that an employer cannot restrict the right to freedom of speech of an employee per the National Labor Relations Act. The Act provides an employee with the right to engage in ‘concerted activities’ thereby protecting the employee’s freedom of speech. This protection is afforded irrespective of whether the employee is acting individually or jointly in a union. However, it must be noted that, the right guaranteed under Section 7 is not without limitations. It is limited to activites for collective bargaining or mutual aid or protection.