Pub. 8 2017 Issue 4

Winter 2017 21 West Virginia Banker Social Media and the Workplace By Marquerite Irefin and Jennifer H. Gorman, Esq., ABA Insurance Services, WVBA endorsed provider W ith social media everywhere, employers face unique challenges when it comes to their employees’ use and conduct. Not surprisingly, employees have been known to share information about their employers, including negative statements and damaging information, sometimes hurting the employer’s reputation; however, challenging em- ployee social media posts can be tricky, difficult and potentially illegal. Additionally, the National Labor Rela- tions Board (NLRB), wants to expand protection. Section 7 of the National Labor Relations Act (“NLRA”) was tra- ditionally viewed as protecting employ- ee rights to organize and collectively bargain; however, the National Labor Relations Board (“NLRB”) has recently focused on whether employer social media policies unlawfully interfere with employees’ rights under Section 7 to engage in “protected concerted activi- ties” for their mutual aid and protection. Section 7 is not limited to unionized workplaces The NLRA protects the rights of em- ployees to act together to address con- ditions at work, with or without a union. In 2010, the NLRB began receiving charges relating to employer enforce- ment of social media policies, specif- ically about discipline for postings on Facebook, Twitter and YouTube. Since then the NLRB has issued numerous decisions addressing this area. The threshold issue is whether the employ- ee’s online communication constitutes a protected concerted activity. If so, any disciplinary action taken against the employee violates the NLRA. To be protected under the NLRA, the concerted activity must involve mutual aid for employees about wages and/or working conditions. In a 2013 case, an employee posted her complaints on Facebook about her supervisors’ treatment of subordinates. Coworkers with similar complaints post- ed supportive comments—one posted that she was going to bring to work a book on employee rights in the work- place. The supervisor became aware of the posts and fired the employees who had posted. The NLRB held that the terminations violated the NLRA because the Facebook posts were protected concerted activity. Even if an employee’s posts are rude and disrespectful, they may still be protected activities if they are consid- ered “concerted” in nature. Concerted activity may lose legal protection only if it is so flagrant, violent, or extreme as to render the employee unfit for service. Additionally, illegal activity and deliber- ate lies are typically not protected. Protected and Unprotected Social Media Activity In determining whether employee social media posts constitute “protected activity,” the NLRB primarily focuses on whether the post is “concerted,” in an attempt to mutually address workplace conditions. For example: • A bank fired a teller for repeated fail- ure to balance her drawer. She posted a rant on her Facebook page against the bank. Several current employees “liked” her post. Another current employee took a screenshot of the rant and the “likes” and gave them to bank management. The president wanted to fire the employees who had “liked” the terminated employ- ee’s post. Because this could be considered “concerted activity,” the decision was made not to terminate the employees. • An employee who was arguing with a coworker about job performance and staffing levels posted his discontent on Facebook and asked other employees to leave comments, to which several people replied. The employee who posted the content was fired and so were all who commented. Because they were “discussing working conditions,” the NLRB found that they engaged in protected activity. The employer was sued for wrongful termination. • An employee was fired for “Tweeting” negative comments about her em- ployer, including that they didn’t care about employees. No other employ- ees “liked” that post. The NLRB did not defend her, citing that she was not seeking support or input from her fellow employees, and since there was no intent of creating a group action against the employer, the NLRB found