Diane A. Seltzer, Esquire
The Seltzer Law Firm
5335 Wisconsin Avenue, N.W., Suite 920
Washington, DC 20015
202-355-9385
www.seltzerlawfirm.com
dseltzer@seltzerlawfirm.com
 The
National Labor Relations Act (NLRA),
which applies to unionized AND nonunionized workplaces, makes certain
employer actions Unfair Labor Practices
(ULP).
 Actions that employers take in response to
their employees’ use of Social Media could
constitute ULPs.




An employer violates Section 8(a)(1) of the NLRA by threatening to
impose discipline upon an employee who exercises their Section 7
rights by engaging in “concerted activity for mutual aid or
protection.”
“Concerted Activity” is when an employee acts with or on the
authority of other employees, and not solely by and on behalf of
the employee himself. Meyers I, 268 NLRB 493 (1984)
“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.” Meyers II, 281 NLRB 882
(1986).
Concerted activity is for “mutual aid or protection” where “the
activity directly implicates terms and conditions of employment
and were initiated in preparation for a meeting with the Employer
to discuss matters related to these issues.”
The lone act of a single employee is concerted if it “stems from”
or “logically grew” out of prior concerted activity.
An employer violates Section 8(a)(1) of the NLRA through the
maintenance of a workplace rule if that rule would
“reasonably tend to chill employees in the exercise of their
Section 7 rights.” Lafayette Park Hotel, 326 NLRB 824, 825
(1998), enf’d 203 F.3d 52 (D.C. Cir. 1999).
NLRB uses a two part test to determine if a work rule would have such an
effect:
1. Rule is unlawful if it explicitly restricts Section
7 activities.
2. If the rule does not explicitly restrict protected
activities, it is is unlawful only upon a showing that:
(a) employees would reasonably construe the language to
prohibit Section 7 activity;
(b) rule was promulgated in response to union activity; or
(c) rule has been applied to restrict the exercise of Section 7 rights.
 HAVE
A GOOD SOCIAL MEDIA USE POLICY!
 According to the SHRM Survey Findings,
“Social Media in the Workplace” published
in November 2011, 43% of organizations
block access to any social networking
services (e.g., Facebook, LinkedIn,
MySpace, Twitter) on company-owned
computers or handheld devices.
 That means that 57% of organizations don’t
block access and need social media use
policies.
A
definition of what is “Social
Media.” A good definition is one that
includes, but is not limited to,
personal blogs; sites such as
FaceBook, LinkedIn, MySpace and
Twitter; video or wiki postings; chat
rooms; personal websites; or other
forms of online journals, diaries or
websites not affiliated with the
company.
A
code of conduct for employees’
personal use of Social Media
A notification of the employer’s right
to monitor Social Media usage
Guidelines for Social Media
communications
A code of conduct for employees’ use
of Social Media for professional
purposes, if they are authorized to
use it in that way
A statement that the company takes
no position on the employee’s
decision to start or maintain a blog
or participate in other social media
or social networking.
 A statement that the company has
the right and duty to protect itself
from unauthorized disclosure of
confidential and/or proprietary
information.

A
statement that the company has
the right and duty to protect itself
from having employees indicate that
they are speaking on behalf of the
company when they are not
authorized to do so.
 First,
include a statement that the
company respects the employees’ right to
write blogs, use social media, and use
social networking sites.
 Second, state that the company does NOT
WANT TO DISCOURAGE employees from
self-publishing and self-expression.
 Third, state that the company takes a
NEUTRAL STANCE towards employees who
use Social Media in connection with
personal interests and affiliations, or for
other lawful purposes.
 Employees
MUST make clear that their
comments and posts are made by each of
them as an individual – not as an
employee, agent or representative of the
company.
 Unless specifically authorized in writing
by the President of the company,
Employees are not authorized to – and are
therefore restricted from – speaking on
behalf of the company through Social
Media.
 Employees
may not discuss patients, specific
patient matters, or any privileged,
confidential and/or proprietary work-related
matters and information through Social
Media.
 Employees cannot post through Social Media
privileged, confidential and/or proprietary
patient-related, client-related, companyrelated, or vendor-related documents.
 Employees are personally responsible for
their commentary and posts through Social
Media.
 Employees
can be held personally
liable for commentary that is
considered defamatory, threatening,
intimidating, harassing, obscene,
proprietary or libelous.
 Employees cannot use company
equipment – including computers,
company-licensed software or other
electronic equipment, facilities or
work time – to conduct personal
blogging or social media/social
networking activities.
 Employees
must use their own personal
e-mail address, and may not use their
company e-mail address, as their
means of identification and
communication for Social Media use.
 Employees cannot use blogs or social
media/social networking sites to
defame, disparage, threaten,
intimidate, harass, discriminate against
or retaliate against employees, the
company, its customers, or anyone
associated with the company.
 If
an employee chooses to identify
himself/herself as an employee of the
company, others may view him or her as a
spokesperson for the company. Therefore,
employees must, when using Social Media,
state clearly that they are speaking on
behalf of themselves, that their comments,
posts and views are their own, and that
they are not authorized to speak on behalf
of the company.
 Employees cannot link from a personal
blog, social media or social networking site
to the company’s internal or external web
site.





UNLESS these provisions contain limiting language stating that
they do not apply to Section 7 activity, do NOT include them in
your Social Media policies:
Policies that prohibit employees from making disparaging
comments when discussing the company or the employee’s
superiors, coworkers and/or competitors.
Policies prohibiting employees from posting pictures of
themselves in any media, including the internet, that depict
the company in any way.
Standards of conduct policies that prohibit “offensive conduct”
or “rude or discourteous behavior.”
Policies that state that employees are subject to discipline for
engaging in “inappropriate discussions” about the company,
management and/or coworkers, where the term “inappropriate
discussions” is not defined by specific examples.
Policies that prohibit employees from using any social media
that may violate, compromise, or disregard the rights and
reasonable expectations as to privacy or confidentiality of any
person or entity.



UNLESS these provisions contain limiting language
stating that they do not apply to Section 7 activity,
do NOT include them in your Social Media policies:
Policies that prohibit any communication or post that
constitutes embarrassment, harassment or
defamation of any company employee, officer, board
member, representative or staff member, where
these broad terms were not defined.
Policies that prohibit statements that lack
truthfulness or that might damage the reputation or
goodwill of the company, its staff or employees,
where these broad terms were not defined.
Policies that prohibit employees on their own time
from using micro-blogging features to talk about
company business on their personal accounts.




UNLESS these provisions contain limiting language stating that
they do not apply to Section 7 activity, do NOT include them
in your Social Media policies:
Policies that prohibit employees from posting anything that
they would not want their manager or supervisor to see or
that would put their job in jeopardy, where there is no
definition or guidance as to what communications the
company is referring that would put employees’ jobs in
jeopardy.
Policies that prohibit employees from disclosing inappropriate
or sensitive information about the company, where there is no
definition or guidance as to what information the company
would consider inappropriate or sensitive.
Policies that prohibit employees from posting any pictures or
comments involving the company or its employees that could
be construed as inappropriate.
Policies that prohibit employees from using the company
name, logo, address, photographs of their stores, or other
company information on their personal profiles.
Employees should be cautioned that the
company may (or will) monitor the comments,
posts, blogs, forums, and discussions about the
company, its employees, customers, and the
industry that employees post on the internet.
 Employees should be urged to report any
violations or perceived violations of the Social
Media Use policy and to provide a screenshot or
printout of the page(s) that they believe
contains the violation.
 Employees should be assured that all reports of
violations will be investigated and responded to,
and that disciplinary action will be taken against
those who violate the policy.

Many NLRB decisions address
whether an employee has
engaged in protected concerted
activity for mutual aid and
protection. Disciplining or
terminating that employee could
be an ULP.


Discussing supervisory actions with coworkers on a FB post,
where employee referred to her supervisor as a “17”
(company code for psychiatric patient), a “dick” and
“scumbag” was protected concerted activity.
FB postings did not interrupt work of any employee
because they occurred outside workplace and during nonworking hours; name-calling was not accompanied by
verbal or physical threats; and postings were provoked by
employer’s unlawful refusal to provide employee with
union representative when required by law to do so.
American Medical Response of Connecticut, Inc., Case 34-CA12576 (October 5, 2010) (Advice Memorandum from OGC);
see Datwyler Rubber and Plastics, Inc., 350 NLRB 669
(2007).
Posting photographs and making comments on FB
expressing disappointment with the cheap
manner in which management handled an all-day
sales event to introduce a new car model, where
the FB activity was a direct outgrowth of an
earlier discussion amongst salespeople that
followed a meeting with management. The
employees worked entirely on commission, so
they were concerned about the impact the
Employer’s choice of refreshments would have
on sales, and therefore, on their compensation.
Karl Knauz Motors, Inc. & Robert Becker, Case 13CA-46452 (Sept. 28, 2011) (ALJ Decision)

 FB
communications amongst five employees,
in reaction to a co-worker’s criticisms of the
manner in which employees performed their
jobs, were protected concerted activity.
Discussions about criticisms of their job
performance were protected.
 Discharging these employees for these FB
postings was unlawful.
Hispanics United of Buffalo, Inc. & Carlos
Ortiz, Case 3-CA-27872 (Sept. 2, 2011) (ALJ
Decision)
 Posting
comments on other employees’ FB
pages so they could concertedly complain
about the employer not having issued their
paychecks on time was protected concerted
activity.
 Newspaper published the FB conversation,
and employee was terminated.
 Discharge was unlawful.
Bay Sys Technologies, LLC & Dontray Tull, Case
5-CA-36314, 357 NLRB 28 (Aug. 2, 2011)
 Two


ways to lose the protection:
1. When the employee makes public outbursts against
a supervisor. Atlantic Steel Co., 245 NLRB 814 (1979)
**ASK: Was the nature of the outburst so opprobrious as to
lose the Act’s protection? Did the tone rise to the level of
disparagement necessary to deprive otherwise protected
activities of the protection of the Act?
LOOK AT:
1. place of discussion
2. subject matter of discussion
3. nature of employee’s outburst
4. whether outburst was, in any way, provoked by an
employer’s ULP.
 2.
When the employee has made
allegedly disparaging comments
about the employer or its product in
the context of appeals to outside or
third parties. Jefferson Standard,
346 U.S. 464 (1953).
 **ASK: Was the inquiry related to an
ongoing labor dispute and was it so
disloyal, reckless or maliciously untrue
as to lose the Act’s protection?
Employer (newspaper) discharged employee (reporter) for
posting unprofessional and inappropriate tweets to a workrelated Twitter account.
 Employee’s tweets critical of his Employer’s copy editors, where
the tweet was in response to his concerns about sports
department headlines, but there was no evidence that he had
discussed his concerns with any of his coworkers, and where
other tweets were about matters relating to his public safety
beat and about homicides in the city. The tweets did not relate
to the terms and conditions of his employment and did not seek
to involve other employees in issues related to employment. Re
Employee had been warned not to tweet about anything workrelated.
 Although some of Employer’s statements could be interpreted to
prohibit activities protected by Section 7, these statements were
not “rules” – they were made solely to this employee in the
context of discipline and in response to specific, inappropriate
conduct.
Lee Enterprises, Inc., Case 28-CA-23267 (April 21, 2011) (Advice
Memorandum from OGC).

Employee (truck driver) claimed employer
constructively discharged him for (among other
things) posting FB comments expressing his
frustration and boredom while stranded by the
weather and griping about his inability to reach the
on-call dispatcher.
 There was no evidence of concerted activity, as
employee did not discuss his FB posts with any of his
fellow employees; and none of his coworkers
responded to his complaints about work-related
matters; there was insufficient evidence that his FB
activity was a continuation of any collective
concerns; and he was not seeking to induce or
prepare for group action.
Buel, Inc., Case 11-CA-22936 (July 28, 2011) (Advice
Memorandum from OGC)

Employee (technical support analyst) claimed
employer discharged him for posting FB comments
complaining about his supervisor’s preferential
treatment of his colleagues.
 There was no evidence of concerted activity, as
employee made complaints solely on his own behalf,
and complaints were not designed to advance any
cause other than his own. There was no evidence of
intention to instigate group action or bring any group
concern to management. Coworkers’ participation in
FB “conversations” was to express amusement or
sympathy – but not because they shared a common
concern about effects of supervisor’s conduct upon
their terms and conditions of employment.
Sagepoint Financial, Inc., Case 28-CA-23441 (August 9,
2011) (Advice Memorandum from OGC)

Employee, in response to a question from a nonemployee, posted complaint on his FB page that he
hadn’t had a raise in 5 years and was doing the
waitresses’ work without tips, and called customers
“rednecks” and stated that he hoped they choked on
glass as they drove home drunk.
 Employee was not engaged in protected concerted
activity. Employee’s FB posting addressed terms and
conditions of employment, but employee 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. There
was no effort to take complaints to management.
JT’s Porch Saloon & Eatery, Ltd., Case 13-CA-46689
(July 7, 2011) (Advice Memorandum from OGC).

Employer (nonprofit facility for homeless people)
terminated employee for making inappropriate FB post
that referred to Employer’s mentally disabled clients.
 Employee was not engaged in protected concerted activity,
because she did not discuss her FB posts with any of her
fellow employees, none of her coworkers are FB friends;
none of her coworkers responded to the posts, she was not
seeking to induce or prepare for group action, and her
activity was not an outgrowth of the employees’ collective
concerns. In fact, her FB posts did not even mention any
terms or conditions of employment.
 Employee was merely communicating with her personal
friends about what was happening on her shift.
 Thus, discharge did not violate Section 8(a)(1).
Martin House, Case 34-CA-12950 (July 19, 2011) (Advice
Memorandum from OGC).

Employer (retail store operator) disciplined customer
service employee for posting profane FB comments
that were critical of local store management.
Comments posted expressed employee’s frustration
regarding his individual dispute with the Assistant
Manager over mispriced or misplaced items.
 Employee’s postings were individual gripe, not
concerted activity. They contained no language
suggesting that employee sought to initiate or induce
coworkers to engage in group action. None of the
coworker’s FB responses indicated that they had
otherwise interpreted employee’s postings. Also,
there was no evidence that employee’s postings were
logical outgrowth of prior group activity. Comments
were an individual gripe.
Wal-Mart, Case 17-CA-25030 (July 19, 2011) (Advice
Memorandum from OGC).


Employee posted messages on her U.S. Senator’s FB page because
she wanted her Senator to know that she disagreed with how
emergency medical services were handled in her state and that her
kind of company was not helping with the situation. She did not
think that the Senator could help with her employment situation.
Employer terminated her for publicly posting disparaging remarks
about Employer and confidential information about its response to
a service call, and her termination for stated that her comments
violated Employer’s code of ethics and business conduct policy.

Employee did not engage in concerted activity, because there was
no evidence that employees had met or organized any group action
to raise [wage] issues with Employer. Employee did not discuss her
posting with any other employee. There had been no employee
meetings or any attempt to initiate group action. She was not
trying to take employee complaints to management and did not
expect Senator to help her situation.
Rural Metro, Case 25-CA-31802 (June 29, 2011) (Advice Memorandum
from OGC).
Employee who posted criticism of a supervisor on his
FB page did NOT engage in protected activity, even
though the postings addressed his terms and
conditions of employment.
 Postings did not seek to initiate or induce coworkers
to engage in group action, and none of the coworkers
responded to the postings with similar concerns.
 Postings were not an outgrowth or prior employee
meetings or attempts to initiate group action with
regard to employer’s sick leave or absenteeism
policy.
 Employee characterized his conduct as “just
venting.”
Frito-Lay, Inc., Case 36-CA-010882 (October 11, 2011)
(Action of Regional Director)

Many NLRB decisions address
whether a Social Media Use
policy provision is unlawful.
Disciplining or terminating that
employee for violating an
unlawful policy provision could
be an ULP.
Employer (car dealership) had various policies
deemed unlawful by the NLRB:
 Policy prohibiting employees from making disparaging
comments when discussing the company or the
employee’s superiors, coworkers, and/or
competitors.
 Policy prohibiting “disrespectful conduct” and use of
profanity towards others.
 Policy stating that employees are subject to
discipline for engaging in “unauthorized interviews”
with, or for answering inquiries concerning
employees by, attorneys, peace officers,
investigators, reporters, or someone who “wants to
ask a few questions.”
Karl Knauz Motors, Inc. & Robert Becker, Case 13-CA46452 (Sept. 28, 2011) (ALJ Decision)





Employer (hospital) policy prohibited employees from using any social media that
may violate, compromise, or disregard the rights and reasonable expectations as to
privacy or confidentiality of any person or entity (Rule 4); prohibited any
communication or post that constitutes embarrassment, harassment or defamation
of the hospital, its employees, officers, board members, representatives, or staff
members (Rule 5); and prohibited statements that lack truthfulness or that might
damage the reputation or goodwill of the hospital, its staff or employees (Rule 6).
Employee was terminated after posting comment on her FB page complaining about
colleague’s pattern of calling in sick or absent, saying that colleague disrupted the
work that weekend, and asking anyone with other details to contact her. Employer
said that she had “talked badly about the hospital” in violation of Employer’s social
media policy.
Provisions of Rule 4 in policy deemed overly broad, as employees could reasonably
construe them to prohibit protected conduct. Policy gave no guidance as to what
Employer considered to be private or confidential, yet it relied on that rule to
terminate employee. Absent any limitations on what was covered, and in light of
Employer’s application of the rule to protected conduct, that provision could
reasonably be interpreted as prohibiting protected employee discussion of wages
and other terms and conditions of employment.
Provisions of Rules 5 and 6 in policy also deemed overly broad, as they included
broad terms that would commonly apply to protected criticism of Employer’s labor
policies or treatment of employees, and they did not define these broad terms or
limit them in any way that would exclude Section 7 activity.
Flagler Hospital, Case 12-CA-27031 (May 10, 2011) (Advice Memorandum from OGC)


Employer (emergency medical services provider) policy
that prohibited “offensive conduct” and “rude or
discourteous behavior” proscribed a broad spectrum of
conduct. Absent limiting language, employees would
reasonably construe these provisions as prohibiting Section
7 activity.
For same reasons, policy provision prohibiting employees
from posting pictures of themselves in any media which
depicts the company in any way (including but not limited
to a company uniform, corporate logo, or an ambulance),
and policy provision prohibiting employees from “making
disparaging comments when discussing the company or the
employee’s superiors, co-workers, and/or competitors” is
unlawful.
American Medical Response of Connecticut, Inc., Case
34-CA-12576 (October 5, 2010) (Advice Memorandum
from OGC).


Employer’s policy prohibited employees on their own time
from using micro-blogging features to talk about company
business on their personal accounts; from posting anything
that they would not want their manager or supervisor to
see or that would put their job in jeopardy; from disclosing
inappropriate or sensitive information about the Employer;
and from posting any pictures or comments involving the
company or its employees that could be construed as
inappropriate.
Prohibited conduct section of the policy was unlawful,
because its prohibitions were broad terms that would
reasonably be construed to apply to protected discussion
about, or criticism of, Employer’s labor policies or
treatment of employees. Absent limitations or examples
of what was covered, the rules would reasonably be
interpreted as prohibiting employees’ right to discuss
wages and other terms and conditions of employment, as
well as to communicate through posting pictures.



Employer policy that precluded employees from revealing,
including through the use of photographs, personal information
regarding coworkers, company clients, partners, or customers
without their consent. Policy also precluded use of Employer’s
logos and photos of Employer’s store, brand or product, without
written authorization.
Prohibition upon revealing personal information was unduly broad
and could reasonably be interpreted as restraining Section 7
activity, because employees have right to share information
about themselves or their fellow employees with each other or
with nonemployees. There were no limitation or examples of
what was covered.
Prohibition on using Employer’s logo or photos of Employer’s
stores would restrain employee from engaging in protected
activity, because employee could not post pictures of employees
carrying picket sign depicting Employer’s name, peacefully
carrying a handbill in front of a store, or wearing a tee-shirt with
Employer’s logo in connection with a protest involving terms and
conditions of employment.
 Employer
policy precluded employees from
pressuring their coworkers to “friend”,
connect or communicate with them via social
media.
 This admonition was sufficiently specific in
its prohibition in pressuring coworkers and
clearly applied only to harassing conduct, so
it could not reasonably be interpreted to
apply more broadly to restrict employees
from attempting to “friend” or otherwise
contact colleagues for the purposes of
engaging in protected concerted or union
activity.



Employer policy stated that, in order to maintain the
company’s reputation and legal standing, certain subjects
may not be discussed by employees in any form of social
media. Provision at issue was prohibition on
“disparagement of company’s or competitors’ products,
services, executive leadership, employees, strategy, and
business prospects.
Looking at preamble and policy as a whole, reasonable
employee could not construe the rule as a limit on Section
7 conduct.
Further, employees continued to discuss union campaign on
the listserv after the policy was implemented, and no
discipline was imposed.
Sears Holdings, Case 18-CA-19081 (Dec. 4, 2009) (Advice
Memorandum from OGC)



Employer (grocery store chain) policy stated that public affairs
office was responsible for all official external communications;
that employees were expected to maintain confidentiality about
sensitive information; that one person should speak for Employer
to deliver appropriate message and avoid giving misinformation;
that employees were prohibited from using cameras in store or
parking lot without prior approval from corporate office; and that
employees were to respond to all media questions by replying
that they were not authorized to comment for Employer or did
not have information being sought, to take name and number of
media organization, and to call public affairs office.
Purpose of policy was to ensure consistent, controlled company
message and cannot be reasonably interpreted to restrict Section
7 communications. Employees could exercise their Section 7
right to speak with reporters about working conditions.
Prohibition against cameras was to news cameras, not to
employee’s own personal cameras; therefore, this part of policy
would not chill employees’ Section 7 rights.