Chapter 4: Employment Law
Contributors: Brian D. Wassom
Suggested Citation Form for This Page: Brian D. Wassom et al., Wassom on Social Media Law Chp. 4.A.2, available at <wassom.com/wosml-4a2.html> (last edited March 4, 2013)
A. Protected Concerted Activity
2. Case Law
The following list is by no means comprehensive of all “protected concerted activity” litigation related to social media. But it does give a sense of how fact-specific these cases are, and why they have left many observers guessing as to where the line is between protected concerted activity and behavior that can be punished.
a. Cases Siding With Employees
Build.com. In April 2011, the Board settled two cases involving an employer who fired an employee over that employee’s social media posts. In one, online retailer Build.com fired an employee who criticized her employer and its alleged state labor code violations on Facebook. Like those at issue in AMR, the posts also drew responses from co-workers.
Thomson Reuters. A Thomson Reuters Corp. employee tweeted that “one way to make this place the best place to work is to deal honestly with Guild members.” In response, she received a phone call at home from her Bureau Chief, informing her of the company’s policy “that we were not supposed to say something that would damage the reputation of Reuters News or Thomson Reuters.” The Board saw that phone call as designed to chill the employee’s protected activity. It settled with the employer in April 2011.
Hispanics United. This New York nonprofit fired five employees. According to the NLRB’s press release, “[t]he case involves an employee who … posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues.” Hispanics United considered the posts harassment of the coworker; the NLRB characterized them as a protected conversation about working conditions such as performance and staffing. In September 2011, an administrative law judge ordered the five workers reinstated. “It is irrelevant to this case that the [employees] were not trying to change their working conditions and that they did not communicate their concerns to [their employer],” the ALJ wrote. Rather, “employee complaints to each otehr concerning schedule changes constituted protected activity.”
Knauz BMW. The Board alleged that the Knauz BMW dealership in Chicago violated the NLRA by terminating a salesman who posted photos and commentary on his Facebook page criticizing his employer for serving only hot dogs and bottled water at a dealer sales event. Although it does not appear that coworkers joined the conversation, the Board noted that some of them “had access to” the posts, which therefore made the comments protected concerted activity.
Costco. The legal blogosphere was in a stir following the National Labor Relations Board’s September 7, 2012 Costco decision. As the first social media-related decision from the NLRB itself–previous cases had been from lower administrative law judges or nonbinding guidance from the NLRB’s general counsel–it deserved careful attention. Unfortunately, in the rush to opine about the decision, a lot of commentators mischaracterized the ruling, and thus, in my view, missed the boat.
I’m talking specifically about the word “defamation.” The line in Costco’s social media policy that troubled the NLRB was “the broad prohibition against making statements that ‘damage the Company, defame any individual or damage any person’s reputation.’” That line encompasses three separate types of injuries. But commentators have seized onto the word “defame,” making such proclamations as “NLRB greenlights defamation” and that it found a “policy prohibiting defamation unlawful.”
So what did the NLRB do here? Let’s parse its ruling a little more carefully. It wasn’t a complicated discussion; it occupies less than two pages in an 18-page opinion.With respect to these well-meaning bloggers, I submit that they got this one wrong. As a media lawyer, I’ve litigated plenty of defamation cases. ”Defamation” is a legal term of art that, by definition, describes an unlawful act. It’s another word for “libel” or “slander,” and means an intentionally false, unprivileged statement that causes a legally cognizable injury to a person’s reputation. Not all injury to reputation can support a lawsuit, anymore than all killing is murder. But to call something “defamation” is to identify a type of statement that is unlawful, in the same way that calling a killing “murder” separates it from an accidental or legally excusable killing. The NLRB could no more “greenlight” defamation than it could any other illegal act.
Costco’s policy prohibited communications that “damage the Company, defame any individual or damage any person’s reputation.” Even though the word “defamation” has legal meaning, the other types of prohibited activity are much broader. Reading this sentence as a whole, without any other explanation of what’s prohibited and what’s not, gives the reader the impression that anything that hurts someone’s reputation or otherwise “damages” them is prohibited. The Board decided that this could deter employees from speaking up for themselves or criticizing workplace conditions (i.e., to exercise their protected Section 7 rights). It contrasted this to policy language prohibiting “conduct that is malicious, abusive, or unlawful,” which is not protected by Section 7.
As is universally true of all human language, the key to its meaning is its context. The NLRB compared Costco’s policy to one upheld in Tradesmen International, 338 NLRB 460, 460-63 (2002). There, the Board upheld a rule that prohibited “statements which are slanderous [i.e., defamatory] or detrimental to the company or any of the company’s employees.” But that rule “was among a list of 19 rules which prohibited egregious conduct such as ‘sabotage and sexual or racial harassment.” In upholding this language, the Tradesmen International opinion “considered [the rule] in context” to determine that it only prohibited conduct that was unlawful.
In May 2012, NLRB General Counsel Lafe Solomon followed the same approach in endorsing Walmart’s social media policy. Discussing a similar section in that policy entitled “Be Respectful,” Solomon acknowledged that “in certain contexts, the rule’s exhortation to be respectful and ‘fair and courteous’ in the posting of comments, complaints, photographs, or videos, could be overly broad.” But he concluded that, read in context, the rule “provides sufficient examples of plainly egregious conduct so that employees would not reasonably construe the rule to prohibit Section 7 conduct.”
According to the NLRB, that context was missing from Costco’s policy. ”Indeed,” wrote the Board, “there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule. In these circumstances, employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of [Costco] or its agents).” Therefore, concluded the Board, Costco’s “maintenance of the rule thus has a reasonable tendency to inhibit employees’ protected activity and, as such, violates Section 8(a)(1).”
Bottom line: context is key. You need to read a policy as a whole to determine what any particular portion means. So, contrary to a lot of the punditry about the Costco decision, the fact that the NLRB took issue with a sentence that included the word “defamation” does not mean that employers must now allow their employees to defame each other online.
EchoStar. This 40-page opinion (complete with a two-page long table of contents) issued in September 2012 by ALJ Clifford Anderson in Denver, Colorado was intended to make a point. At issue was a challenge to EchoStar’s social media policy forbidding employees from, among other things, (1) making “disparaging or defamatory comments about EchoStar, its employees, fficers, directors, vendors, customers, partners, affiliates, or our, or their, products/services”; (2) speaking with the media or government agencies without authorization; and (3) using social media on company time.
As in Costco, this ALJ found this use of the word “disparaging” to cast too wide of a net, prohibiting both protected criticism as well as truly defamatory comments. Therefore, he found the language to “chill” employees from exercising Section 7 rights. The “stark prohibition” against speaking to the media and government agencies was also invalidated, because, as written, employees would not understand it to be limited to “the permissible [purpose] of limiting official employee contact with the media to those employees who have the authority to do so.”
The ALJ also struck down the policy’s prohibition on use of social media on company time. The NLRB argued that the “incredible mobility” of smart phones allows employees to use social media without using the employer’s computers, and therefore the employer could not prohibit that activity.
b. Cases Siding With Employers
Arizona Daily Star. The Board agreed with the Arizona Daily Star’s decision to fire a reporter who posted multiple tweets on his work-related Twitter account that that the employer deemed unprofessional and inappropriate. For instance, in one tweet he wrote, “You stay homicidal, Tucson ….” And another read, “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.” Unlike the prior cases, these tweets were not complaints about workplace conditions or management, and therefore could not be construed as “protected concerted activity.” They were simply offensive.
JT’s Porch Saloon & Eatery Ltd. This case involved a bartender who was fired for griping on Facebook about his employer and insulting its customers. The subject of his ire was the saloon’s policy that waitresses were not required to share their tips with bartenders, even though bartenders helped deliver food to the table.
The bartender’s comments came in response his stepsister asking him how his night at work had been. As recited by the NLRB,
he responded with complaints that he hadn’t had a raise in five years and that he was doing the waitresses’ work without tips. He also called the Employer’s customers “rednecks” and stated that he hoped they choked on glass as they drove home drunk.
The bartender’s digs on his own customers sound a lot like the insults of Tucson residents that got an Arizona Daily Star reporter fired–another termination that the Board upheld.
More important in this case (at least from the NLRB’s perspective), however, was the fact that the bartender’s comments were directed at his stepsister instead of his co-workers or his management. As the Board explained, “concerted activity” is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Concerted activity also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring “truly group complaints” to management’s attention.
Although the record showed that the bartender had once complained about the policy to a coworker, there was no evidence that this post was an “outgrowth” of that conversation. Moreover,
he did not discuss his Facebook posting with any of his fellow employees either before or after he wrote it, and none of his coworkers responded to the posting. There had been no employee meetings or any attempt to initiate group action with regard to the tipping policy or the awarding of raises. There also was no effort to take the bartenders’ complaints about these matters to management.
For those reasons, the comments did not qualify for federal protection. But even though the Board upheld the termination, this reasoning does not give employers much assurance. What if only one other employee had seen and commented on the bartender’s post? Or what if he had made a single comment about the policy to a manager? Would the Facebook rant then be considered sufficiently “concerted” activity?
Martin House. This case involved a full-time recovery specialist employed by Martin House, a nonprofit homeless shelter specializing in treating the mentally ill. While at work, the employee (or “Charging Party”) engaged in the following Facebook conversation with two of her friends, for which she was fired:
Charging Party: Spooky is overnight, third floor, alone in a mental institution, btw Im not a client, not yet anyway.
Friend 1: Then who will you tell when you hear the voices?
Charging Party: me, myself and I, one of us had to be right, either way we’ll just pop meds until they go away! Ya baby!
Charging Party: My dear client ms 1 is cracking up at my post, I don’t know if shes laughing at me, with me or at her voices, not that it matters, good to laugh
Friend 1: That’s right but, if she gets out of hand, restrain her.
Charging Party: I don’t need to restrain anyone, we have a great rapport, im beginning to detect when people start to decompensate and she is the sweetest, most of our peeps are angels, just a couple got some issues, Im on guard don’t worry bout a thing!
Friend 2: I think you’d look cute in a straitjacket, heh heh heh …
The Board found all sorts of things wrong with this conversation. As in the JT’s Porch Saloon and Arizona Daily Star cases, the comments were not directed to co-workers, and did not arise out of concerns raised with them or with management. Indeed, this post was not even accessible to the employee’s co-workers, since she was not Facebook friends with any of them. (It was discovered by a former client.)
In addition, though, the Board found that these comments “did not even mention any terms or conditions of [her] employment” (unless you count spookiness as a workplace condition, that is). On top of that, they revealed her clients’ confidences, and were posted during work hours when she should have been performing other tasks.
Wal-Mart (Oklahoma). This case is interesting because the Board upheld the employee’s termination even though co-workers commented on the post and he threatened to take his complaints to management. After a frustrating day on the job, the employee posted “Wuck Falmart!” and threatened to quit. Asked by a co-worker to explain, the employee wrote:
You have no clue [Employee 1]…[Assistant Manager] is being a super mega puta! Its retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting it for that price…that’s false advertisement if you don’t sell it for that price…I’m talking to [Store Manager] about this shit cuz if it don’t change walmart can kiss my royal white ass!
Other co-workers responded, but only with generic expressions of support and sympathy.
The Board ruled for Wal-Mart because it determined these posts to be “an expression of an individual gripe” against the Assistant Manager rather than an attempt to “initiate or induce coworkers to engage in group action.” Also interesting is that the Board based this conclusion in part on how the coworkers reacted to the post. One “merely indicated that he found [it] humorous” (his exact words were “ bahaha like! ”); another asked why he was “wound up,” while another said “hang in there.” The Board read these comments to suggest that the rant was simply “a plea for emotional support.” Wal-Mart also argued that, regardless of whether the post was concerted action, the employee’s “use of profanity was so opprobrious as to deprive him of the [National Labor Relations] Act’s protection.” The Board left this argument for another day, but I expect we’ll see it come up again soon.
The outcome of this case appeals to common sense. But that makes it difficult to reconcile with the Board’s more extreme stances in favor of employee posts, such as its decision that a car salesman’s criticism of the food his employer served at a sales event was “concerted activity” even though no coworkers commented on the post, and only some even had access to it. That case, and others like it, are still pending.