Unpopular Employee's Facebook Post Unprotected by NLRA; Some Employer Policies Implicating Employees' Use of Social Media Unlawful: NLRB General Counsel's Office

Practical Law Legal Update 2-524-3101 (Approx. 9 pages)

Unpopular Employee's Facebook Post Unprotected by NLRA; Some Employer Policies Implicating Employees' Use of Social Media Unlawful: NLRB General Counsel's Office

by PLC Labor & Employment

Background

McKesson Corporation, a large, international health care services company, employed the employee for approximately eight years as a refund processor. At least since the summer of 2010, the employee had been outspoken about concerns she held about her job. Between June 2010 and September 2011, the following incidents occurred:

In June and July 2010, the employee:
- wrote several emails to management expressing concern about her increased workload and the employer's time requirements; and
- complained at a meeting about the wage scale and that employees had to purchase their own office supplies.
In the fall of 2010, the employee became increasingly concerned that the employer would outsource her job, despite there being no evidence to support this concern. According to the employee, she had conversations with other employees about outsourcing and was aware that other employees had similar conversations. She related one conversation she had with another employee in which they laughed about whether to let a client know that the employer might outsource its work.
On November 10, 2010, the employee posted the following statement on Facebook: "Help! I am being outsourced. . anyone know of a company who is hiring that doesn't outsource??" Although she did not identify herself as an employee of the employer, she did have other employees as her Facebook "friends."
A few days after the Facebook post, the employee e-mailed her manager inquiring about the severance policy (in case her work was outsourced).
Some of the employee's colleagues (who disliked the employee) notified management about her November 10 Facebook posting.
Management met with the employee on November 17 and:
- accused her of creating a panic about outsourcing and severance benefits;
- told her to never mention outsourcing to anyone, and that if she did it could lead to termination; and
- accused her of posting a comment on Facebook about the employer outsourcing (which she denied, accusing her employer of libel, slander, and defamation.)
The next day, the employee wore a t-shirt to work bearing the slogan, "Trust No One."
Toward the end of December 2010, an anonymous employee wrote a two-page letter called "A Bully Works Among Us," to the employer's CEO, on behalf of many coworkers. The letter's purpose was to complain about the employee, and stated that she is a bully in the workplace.
The employee's managers met with her on February 4, 2011, and told her:
- about the anonymous letter;
- that upper management had been sent to interview employees;
- the substance of the complaints in the letter; and
- to stop making negative comments and causing low morale.
On June 2, the employer issued the employee an overall annual review rating low enough to automatically put her on a PIP. The review stated that her low rating was partly based on her openly discussing rumors of outsourcing and her negative behaviors. At a meeting with management to discuss her review, a manager told the employee that she could not discuss any aspect of her review with any other employee.
On September 21, 2011, the employer formally issued the employee her PIP. The form stated that it "is strictly confidential and is not to be shared."

Advice Memorandum Analysis and Conclusions

The NLRB Division of Advice concluded that the employee was not engaged in protected concerted activity at any time, including when she posted her comment on Facebook. In its analysis, the Division of Advice gave the following reasoning for its conclusion:

The employee frequently voiced her workplace concerns to colleagues and management, had conversations with employees about outsourcing, and claimed that other employees had such conversations among themselves. However, there is no evidence that her colleagues shared her concerns or wished to voice them with her. The sole conversation she had did not demonstrate concern for her job being outsourced. Rather, it expressed concern for the client whose work might be outsourced, and was stated jokingly.
The employee was disliked by her coworkers and had alienated them to the extent that one wrote a letter to the CEO.
Even though the employee had spoken up at a meeting to complain about wages and other working conditions, and claimed to have talked with other employees about their concerns about outsourcing, it appeared that she was alone in these protests.
There was no evidence to show that the employee posted her comment on Facebook to further concerted activity for mutual aid and protection. There were no other posts regarding outsourcing, and no other employee responded to her post. In the absence of evidence of prior group activity, her lone Facebook post was not concerted and cannot be characterized as a continuation or logical outgrowth of prior group activity.

The Division of Advice also concluded that, because the employee was also not engaged in protected concerted activity, the employer did not violate the NLRA by:

Issuing her a negative performance review based on her complaints and Facebook post, because that conduct was not protected concerted activity.
Placing her on a PIP.

The Division of Advice also concluded that the employer's statements that she should stop being negative, and that her low rating was based in part on her spreading of false rumors of outsourcing, were not unlawful, because they were in response to her unprotected conduct and merely warned her against engaging in similar conduct in the future. The Division of Advice noted that it is apparent that the "negative behaviors" the employer complained of included her long-term behavior that led employees to send an anonymous letter to the CEO asking for relief from her conduct. Therefore, even if the employee was engaged in protected concerted activity, the employer had a legitimate basis to issue her a negative performance review and place her on a PIP based on the anonymous letter and subsequent employee interviews, which confirmed improper conduct by the employee.

The Division of Advice concluded that the employer violated the NLRA by:

Telling the employee that she could not discuss any aspect of her review, including her rating or pay increase, with anyone.
Including a statement on her PIP that "this form is strictly confidential and is not to be shared with any other employees."

Unlawful Social Media Rules

The employee also alleged that the employer's social media policy contains unlawful provisions. The Division of Advice concluded that portions of the social media policy the employer implemented on December 22, 2011, violated the NLRA because employees would reasonably construe them to chill Section 7 activity.

The sections of the Policy at issue are:

Respect Privacy. If during the course of your work you create, receive or become aware of personal information about McKesson's employees, contingent workers, customers, customers' patients, providers, business partners or third parties, don't disclose that information in any way via social media or other online activities. You may disclose personal information only to those authorized to receive it in accordance with McKesson's Privacy policies.

The Division of Advice concluded that the portion of the rule prohibiting disclosure of personal information about the employer's employees and contingent workers is unlawful because, in the absence of clarification, employees would reasonably construe it to include information about employee wages and working conditions. However, the portion prohibiting disclosure of personal information only to those authorized to receive it would not be unlawful. If the employer revises the policy to clarify that it is not intended to curb discussion about terms and conditions of employment.

Legal matters. Don't comment on any legal matters, including pending litigation or disputes.

The Division of Advice found that prohibiting employees from commenting on any legal matters is unlawful because it specifically restricts employees from discussing the protected subject of potential claims against the employer, including this charge.

Adopt a friendly tone when engaging online. Don't pick fights. Social media is about conversations. When engaging with others online, adopt a warm and friendly tone that will encourage others to respond to your postings and join your conversation. Remember to communicate in a professional tone. (For example, is your post written in a way that is appropriate when communicating with a supervisor or customer?) Don't be afraid to be yourself, but do so in an ICARE manner. This includes not only the obvious (no ethnic slurs, personal insults, obscenity, etc.) but also proper consideration of privacy and topics that may be considered objectionable or inflammatory—such as politics and religion. Don't make any comments about McKesson's customers, suppliers or competitors that might be considered defamatory.

The Division of Advice found that cautioning employees against online discussions that could become heated or controversial is unlawful because discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion. Without further clarification of what is "objectionable or inflammatory," employees would reasonably construe this rule to prohibit protected discussions about working conditions or unionism.

Respect all copyright and other intellectual property laws. For McKesson's protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including McKesson's own copyrights, trademarks and brands. Get permission before reusing others' content or images.

The Division of Advice found that most of this rule is not unlawful. It does not prohibit the use of content or images, but merely urges employees to respect the laws. However, the portion requiring employees to "get permission before reusing others' content or images" is unlawful, as it would interfere with employees' protected right to take and post photos of, for example, employees on a picket line or working in unsafe conditions.

You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. McKesson believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet. McKesson encourages employees and other contingent resources to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.

The Division of Advice concluded that this rule is unlawful, because by telling employees that they should use internal resources rather than airing grievances online, it has the probable effect of precluding or inhibiting employees from the protected activity of seeking redress from alternative forums (such as unions).

Use your best judgment and exercise personal responsibility. Take your responsibility as stewards of personal information to heart. Integrity, Accountability and Respect are core McKesson values. As a company, McKesson trusts—and expects—you to exercise personal responsibility whenever you participate in social media or other online activities. Remember that there can be consequences to your actions in the social media world—both internally, if your comments violate McKesson policies, and with outside individuals and/or entities. If you're about to publish, respond or engage in something that makes you even the slightest bit uncomfortable, don't do it.

The Division of Advice concluded that this rule is not unlawful. Although this language could be interpreted as a veiled threat to discourage online postings, which includes protected activities, the phrases are unlawful only son far as they are an extension of the unlawful rules themselves. The Division of Advice found that if the employer rescinded the offending rules discussed above it would remedy the coercive effect of the potentially threatening statements in this rule.

This Policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act.

The Division of Advice concluded that the savings clause, although a helpful addition to the policy, does not negate the chilling effect of the unlawfully overbroad provisions.

Practical Implications

This advice memorandum was released by the Division of Advice in the Acting General Counsel's Office nearly a year after it was issued to the applicable NLRB regional office and parties. The NLRB General Counsel's office released this advice memorandum as guidance for employers in a developing area of law that has drawn considerable attention. The memorandum provides guidance to employers on what language in employment policies that implicate employees’ use of social media may face NLRB scrutiny. The memorandum is not binding precedent from the panel (Board) heading the judicial functions of the NLRB, but it shows:

The NLRB Acting General Counsel's views about the scope of protected concerted activity on social media.
A type of employee activity on social media which the NLRB's General Counsel and regional offices will not find is protected concerted activity.
Examples of language in employment policies that the NLRB's General Counsel and regional offices are likely to find:
- unlawful and the basis for issuing a ULP complaint; or
- lawful and not a basis for issuing a ULP complaint.
Prosecutorial theories that the NLRB's General Counsel and regional offices will likely assert when prosecuting complaints about similar policies that implicate employees’ use of social media.

The conclusion that the employee did not engage in protected concerted activity largely because there was no evidence that any other employees were interested in joining the employee's comments or opinions about the employer is consistent with traditional interpretations of the NLRA. However, the analysis in this Advice Memo of what constitutes protected concerted activity appears to conflict with recent decisions by the Board (see Legal Updates, Spreading Fear about Job Loss to Coworker is Protected Concerted Activity: NLRB and Employees' Facebook Posts about Coworkers Job Performance Criticisms was Protected Concerted Activity: Facebook Firings Unlawful: NLRB). Distinctions that can be gleaned from the facts stated in this advice memorandum include that the employee's allegedly protected comments here were not popular among her coworkers and the employee who made the comments was disliked by her coworkers. A standard rooted in the popularity of the sentiment in allegedly protected speech or the speaker is not particularly helpful for employers, but employers should consider:

Analyzing these factors when making disciplinary decisions concerning employees' use of social media.
Keeping aware of the Board and Acting General Counsel's evolving views on what constitutes protected concerted activity.

Unpopular Employee's Facebook Post Unprotected by NLRA; Some Employer Policies Implicating Employees' Use of Social Media Unlawful: NLRB General Counsel's Office | Practical Law