The National Labor Relations Board’s (the “NLRB” or “Board”) interest in social media issues has surprised many practitioners. Over a nine-month period spanning the end of 2011 and beginning of 2012, the Board’s Acting General Counsel (“AGC”) issued three reports, totaling eighty-three pages, analyzing dozens of potential cases involving social media matters. Some of the cases involved sensational facts—for example, the ambulance company employee who called her supervisor a “scumbag” and compared him to a psychiatric patient on Facebook, or the auto dealership employee who lambasted his employer online over the “less than luxurious” food and drink offered to customers at a company event, or the bartender who complained on Facebook about the bar’s customers, calling them “rednecks” and hoping they choked on glass as they drove home drunk. Other cases analyzed by the AGC dealt with more mundane matters, such as whether an employer’s social media policy was drafted in a manner that could potentially restrict an employee’s right to engage in protected concerted activity under the National Labor Relations Act (“NLRA” or the “Act”).
Given the dramatic rise in social media use in the United States, it is not surprising that the Board has expressed a strong interest in analyzing its use in light of established Board law. By its nature, social media is the perfect vehicle both for “protected, concerted activity” and immeasurably idiotic and flippant statements.
The Board, like any adjudicative body, applies its established legal precedent to the facts at hand. Nevertheless, law is a fluid principle. This Article advances a theory that the Board’s application of its established “brick and mortar” case law in matters involving social media fails to appropriately acknowledge the very nature of social media. Rather than merely apply old standards, the Board should make a creative effort to develop new standards that recognize an employer’s legitimate need to control employee outbursts in a digital age where “going viral” can dramatically alter public perception overnight. Despite the Board’s attempt to fit these discussions into the traditional and comfortable box of “water cooler” discussions, the simple fact is that these are not “water cooler” discussions. These are words and images that travel from Peoria to Peru in the proverbial nanosecond, capable of being stored and captured on a digital timeline forever. The Board must respond to this reality or remain what former NLRB Chairwoman Wilma Liebman famously described as the “Rip Van Winkle” of administrative agencies.
Part I of the Article provides an overview of various social media platforms. Part II outlines the traditional framework within which the Board has evaluated protected concerted activity, while Part III explains how the Board, Administrative Law Judges (“ALJs”), and the NLRB’s Division of Advice and AGC have attempted to apply these traditional tests to social media activity. Part IV highlights the limitations of this approach and provides suggestions for a new applicable legal standard that properly acknowledges the risks associated with employee misuse of social media and distances itself from the ill-fitting “water cooler” analogy.
Colin M. Leonard is a member and Tyler T. Hendry is an associate at Bond, Schoeneck & King, PLLC in the Firm’s Syracuse, New York office. Both practice in the Firm’s Labor & Employment Law Department.