Supreme Leak: NLRA Rights

For blog followers, you likely saw last week’s post reminding you to revisit your confidentiality policies in the wake of the leaking of the Supreme Court’s draft opinion in Dobbs v. Jackson Women’s Health, as well as our follow-up piece concerning religious rights at work and steps to take to minimize hostile work environment claims related to discussions about the context of decision. Now, we want to focus in on social media—Twitter specifically. For those who tweet (and those who don’t), over the course of the last week you have likely seen a wide array of opinions on the matter. I suspect that your feed (depending on your politics and views) may have held content that included one of the following:

• Dear [@Employer], I loved your month of posts on Women’s History Month, now would be the time to weigh in on safe and accessible abortions. #womensrights #RoeVWade #MyBodyMyChoice
• Dear [@Employer], I loved last week’s bottle and diaper drive for the local community center, now would be a good time to stand up and support the idea that abortion is a state issue and not something to be governed at the federal level. #RoeMustGo #ProLife
• Dear [@Employer], When will you announce steps you’re taking to protect access to abortion? #employeebenefits #womensrightshumanrights
• Dear {@Employer], If I find out you’re going to pay for travel for abortion but wouldn’t let me come into work without being vaccinated I call b*****! #hypocrites #mybodymychoice

If you’re the HR Director for @Employer what steps (if any) should you take after your marketing team brings the tweet to your attention? The answer for private employers in both unionized and non-unionized settings should start with the National Labor Relations Act. Specifically, the NLRA protects an employee’s right to engage in what is referred to as “protected concerted activities.” Such activities can occur without regard to whether or not the workplace is unionized. Specifically, in order for an employee to be protected by Section 7 of the National Labor Relations Act (the provision which protects concerted activities), the activity must occur for a group of employees’ “mutual aid or protection.” The phrase “mutual aid or protection” is construed broadly and both courts and the National Labor Relations Board have interpreted the phrase “concerted activity for mutual aid or protection” to include activities by a group of employees or by an individual working on behalf of a group of employees. This can include employees’ efforts to improve the terms and conditions of their employment even through channels outside the employee-employer relationship. For example, complaints about working conditions to posted on social media can constitute concerted activity for a group’s mutual aid or protection. The NLRB typically reviews social media posts for the following elements to determine whether the behavior is protected by Section 7:

• The post concerned employment terms or conditions.
• The post was intended for or was responsive to a co-workers’ post.

The National Labor Relations Board has held that a company may take the following actions and not be in violation of Section 7:

• Prohibit personal social media posting during working time.
• Prohibit offices from posting on social media platforms that the employer cannot capture or monitor, such as Facebook, Twitter, Snapchat, Instagram, and similar apps, as well as blogs and microblogs.
• Require that social media posts affiliated with the employer and its affiliates provide accurate information.

Additionally, as it relates to Employee’s personal social media accounts, Companies can ask that employees:

• avoid using the company email address or contact number in relationship to the personal account
• identify that the employee does not represent the company (unless specifically authorized) and that the views expressed in the post are personal and not those of the company.
• avoid false or misleading posts.
• avoid use or disclosure of the company’s confidential information; and
• avoid violating the employer’s policies (including prohibitions against intimidation, threats of violence, discrimination, harassment, or retaliation).

Here, if we return to the four hypothetical posts above, they each refer to terms or conditions of employment and because another employee has brought it to HR’s attention it was arguably intended for a co-worker. If the posts did not occur during work hours and were not posted indicating that they were the thoughts or opinions of the Company (which they do not appear to have been), it will likely be difficult for the Company to discipline the employee.

For more information on how the NLRA applies to employee social media posts contact Tawny Alvarez or another member of Verrill’s Employment and Labor Practice Group.