As part of a recent labor contract deal between the nurses’ union and Meridian Health in New Jersey, the union agreed to withdraw an unfair labor practice charge filed with the National Labor Relations Board (“NLRB”) alleging Meridian unlawfully threatened nurses who posted social media messages in support of the union’s ongoing contract negotiations with Meridian. Meridian Health had responded to the charges by acknowledging that it maintained “a comprehensive social media policy that outlines exercising good judgment and refraining from communicating patient information or proprietary information of Meridian.”
Although the spat between Meridian and the union was averted by the contract settlement, it serves as yet another illustration of the risks faced by employers who take action against employees for their social media activities. Both union and non-unionized employers must be mindful of the significant protections accorded to employees who engage in work-related social media communications. Section 7 of the National Labor Relations Act (“NLRA”) provides that “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…” In the Meridian case, the union charged that the hospital’s threats against nurses for their pro-union posts ran afoul of these NLRA rights.
Through a series of reports, the NLRB has recognized that employee social media communications may indeed constitute protected concerted activity under Section 7. For employers with a unionized workforce, the NLRB has predictably observed that employee posts pertaining to collective bargaining, strikes or other labor actions are examples of protected activity. Moreover, the NLRB has reaffirmed that Section 7 rights also extend to non-unionized workplaces, and thus employee social media communications addressing disciplinary actions, wages, or any other terms and conditions of employment may likewise be protected under the NLRA. In several recent rulings the NLRB declined to strip employee posts of Section 7 protection even though they were laced with profanities and disrespectful comments about the employer.
Determining whether an employee’s social media post constitutes a protected concerted activity is highly fact sensitive, making it difficult to predict whether the communication will be deemed protected. Employers considering action against an employee for social media activities, even if those posts are overtly negative and disparaging of the employer, should consult with employment counsel before taking action to avoid an unfair labor practice charge for chilling protected employee speech.
Additionally, all employers should review their workplace policies regulating employees’ social media activities. In its May 2012 General Counsel Memorandum on social media policies the NLRB observed that the mere existence of a social media policy that could reasonably be construed by employees to chill the exercise of speech protected by Section 7 is a violation of the NLRA. The memorandum addressed numerous clauses commonly found in social media policies which, according to the NLRB, were overbroad or ambiguous and thus could be interpreted by employees as prohibiting them from freely discussing terms and conditions of employment. The memorandum cautioned that these policies should be narrowly tailored to ensure that they do not have a chilling effect on Section 7 rights and should clearly carve out protected discussions among employees regarding wages and benefits, discipline, working conditions and other terms and conditions of employment. The NLRB also noted that a general savings clause advising employees that the social media policy will not be applied to any employee communications protected under Section 7 will not cure any otherwise overbroad and ambiguous provisions. In light of increasing scrutiny by the NLRB, employers should consult with employment counsel when drafting and reviewing company handbooks and policies to avoid violating employee rights under the NLRA.