2021 aba labor & employment conference think before you

2021 ABA Labor & Employment Conference

Think Before You Tweet:

The Impact of Political Speech on Social Media in the Workplace By Aaron Holt, Shelly Anand, and Angela Thompson

I. At Will Employment and Termination for Social Media Posts

Generally, at-will employment may be terminated by the employee or employer at any time and for any reason (expect an illegal one) or no reason at all. For at-will employees there are limited circumstances where social media posts are entitled to legal protection from termination. For instance, in Blan v. Correct Care Solutions, the Plaintiff was employed as a nurse at a governmental detention center and was terminated for violating social media policies with respect to a Facebook post she made defending a detention officer’s treatment of an inmate.1 Even though she was an at-will employee, as per the handbook, the Plaintiff claimed that her due process rights were violated.2 The Court held, however, that she could not bring a due process claim because she did not have a protected property interest, i.e. “some expectation of continued employment either through contract or statute.”3 Because Plaintiff could not point to any statute or contractual provision that would limit her employer’s ability to discharge her, the court dismissed her due process claim.4 The Plaintiff also claimed that her employer violated her substantive due process rights, but this claim was also dismissed as she had not alleged that her employer behaved in such a manner that “shocked the conscience.”5

Similarly in Caplan v. L. Brands/Victoria Secret Stores, a Victoria Secret employee was

terminated for Facebook posts she made (1) satirizing the atypical spelling of an African-American woman’s name and (2) reposting a picture of “a Ku Klux Klan-reminiscent white, hooded robe emblazoned with the Los Angeles Clippers logo and the number 42, and was captioned ‘Game 5 in LA is Free Sheet Night...Donald Sterling Bobble head doll night too!’”6 The employee alleged she was retaliated against under 42 USC § 1981, which prohibits, inter alia, racial discrimination in employment and protects employees’ ability to complain about the same.7 The court held that “[b]ecause Caplan is an at-will employee, her retaliation claim fails if either post is not protected speech.”8 While the court note one of her posts as being potentially protected whereby she called out the Clipper’s then-owner, her second Facebook post was not in any way protected, rather it was offensive, something she thought was funny– what the district court described as a “picture [that] serves no purpose other than to satirize the atypical spelling of an African-American woman's name.”9 Because the record made clear that Caplan would have been terminated for either

1 Blan v. Correct Care Solutions, LLC, 2017 WL 8640634, slip op. *1-4 (D.N.M. December 11, 2017). 2 Id at *2, *6. 3 Id at *8-10. 4 Id at *10. 5 Id at *12 (quoting Koessel v. Sublette County Sheriff's Dep't, 717 F.3d 736, 750 (10th Cir. 2013)). 6 Caplan v. L Brands/Victoria's Secret Stores, LLC, 210 F. Supp. 3d 744, 750 (W.D. Pa. 2016), aff'd sub nom. Caplan v. L Brands/Victoria's Secret Stores, 704 F. App'x 152 (3d Cir. 2017). 7 Caplan v. L Brands/Victoria's Secret Stores, 704 Fed. Appx. 152, 154 (3rd Cir. 2021). 8 Id. 9 Id at 155


post, the Third Circuit affirmed the trial court’s grant of summary judgment in favor of the employment finding that Victoria’s Secret was entitled to terminate the employee.10

II. The First Amendment of the U.S. Constitution – Public Employment

While most Americans associate political speech on social media with the First Amendment of the U.S. Constitution, this is only half correct. The First Amendment provides that Congress shall made no law…abridging the freedom of speech, or the press; or the right of the people to peaceably assemble.” Yet the First Amendment, along with the entire Bill of Rights, applies to the government’s ability to restrict speech, regardless of whether that speech is in-person or on social media; the First Amendment does not apply to private employers.11 As a result, private employees may have the freedom to speak their minds on social media with government interference, the Constitution does not protect them from discipline by a private employer.12

For public employers, however, the analysis is necessarily different because their employer is a subdivision of the U.S. government. In Connick v. Myers, the United States Supreme Court analyzed a case involving the termination of a government employee who, following a transfer she did not agree with, circulated an internal questionnaire soliciting views from other staff members about the fairness of the transfer policy, their confidence in supervisors and whether they felt pressured to work on political campaigns.13 In deciding the case, the court explained a two-part test to determine if speech from a government employees is entitled for First Amendment protection: 1) whether the speech touches on matters of public concern; and 2) whether the employee’s free speech interest outweighs the public employer's interest in promoting the efficiency of the public services it performs through its employees.14 Speech is a matter of “public concern” when it relates to “any matter of political, social or other concern to the community."15 Whether an employee's speech addresses a matter of public concern depending on the content, form, and context of a given statement, as revealed by the whole record.16

In Connick, the court held the questions posed by Myers did not fall under the rubric of matters of a “public concern.”17 Questions pertaining to the confidence and trust her coworkers possess in various supervisors and the level of office morale were “mere extensions of Myers' dispute over her transfer to another section of the criminal court.”18 The court went on to note that the questions asked were not “of public import in evaluating the performance of the District Attorney as an elected official[,] Myers did not seek to inform the public that the District Attorney's office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases [n]or did Myers seek to bring to light actual or potential wrongdoing or breach of public trust…”19 As a result, the speech was deemed not protected.

10 Id. 11 Carter v. Transp. Workers Union of Am. Loc. 556, 353 F. Supp. 3d 556, 574 (N.D. Tex. 2019) (holding the “First Amendment prohibits governmental infringement on the right of free speech.”) 12 Id. at 576. 13 461 U.S. 138, 141, 103 S. Ct. 1684, 1687, 75 L. Ed. 2d 708 (1983). 14 Id. at 142. 15 Id. at 147-8. 16 Id. 17 Id. at 148. 18 Id. 19 461 U.S. 138, 148, 103 S. Ct. 1684, 1690–91, 75 L. Ed. 2d 708 (1983).


III. State Laws Protecting Political Speech

A number of states have established laws protecting political speech, but their level of protection and scope are as varied as the States themselves. For example:

- California, Colorado, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, and West Virginia prohibit interference with an employee's political activity.20 California also prohibits employers from taking any action against an employee for engaging in lawful conduct occurring during nonworking hours away from the employer’s premises.

- Connecticut extends First Amendment protection of employees to private employers, even subjecting them to punitive damages and attorney's fees unless the employee's activity substantially interferes with the employee's job performance or the working relationship.21

- The District of Columbia, Illinois, Iowa, Louisiana, New York, Puerto Rico, and Washington prohibit discrimination against employees either based on party membership or their electoral activities.22

- Arizona, Georgia, Iowa, Louisiana, Massachusetts, Minnesota, Missouri, Ohio, Oregon, and Washington protect individuals for signing petitions and making campaign contributions.23

We are just now beginning to see the interplay between recently enacted state law protections and their federal employment law counterparts play out in the courts. For example, in Rhonda Patterson-Eachus v. United Airlines, Inc., Plaintiff worked for United Airlines for thirty-one years before she was terminated following an investigation into off-duty Facebook posts she made supporting the “Rebels” mascot of her high school, including a cartoon superimposed on a Confederate flag and a video opining that the Confederate flag “is not the evil that many people say it is.”24 After Plaintiff was terminated, she subsequently filed suit alleging gender and age discrimination under Title VII of the Civil Rights Act as well as violation of Colorado’s lawful off-duty activities statute.25 Colorado’s lawful off-duty activities statute provides “[i]t shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours ….” Colo. Rev. Stat. Ann. § 24-34-402.5.

20 Cal. Lab. Code §§ 1101, 1102; C.R.S. § 8-2-108; La. R.S. 23:961, 23:962; Minn. Stat. Ann. § 10A.36; § 115.637(6), RSMo and § 130.028, RSMo; Neb. Rev. Stat. § 32-1537; NRS 613.040; S.C. Code Ann. § 16-17-560; W. Va. Code § 3-8-11. 21 Conn. Gen. Stat. § 31-51q. 22 D.C. Code §§ 2-1401.02(25), 2-1402.11(a); 10 ILCS 5/29-17; Iowa Code § 39A.2(c)(4); La. R.S. 18:1461.4(A)(1); N.Y. Lab. Law § 201-d; P.R. Laws Ann. tit. 29, § 140; RCW 42.17A.495(2). 23 A.R.S. §§ 19-116, 19-206; O.C.G.A. § 21-4-20(b); Iowa Code § 39A.2; La. R.S. 18:1461.4(A); M.G.L. ch. 56, § 33; Minn. Stat. Ann. § 211C.09; § 115.637(6), RSMo; Ohio R.C. 731.40; Or. Rev. Stat. § 260.665(1), (2); RCW 29A.84.220(5), 29A.84.250(4). 24 No. 19-CV-01375-MEH, 2020 WL 7260742, at *2 (D. Colo. Dec. 9, 2020). 25 No. 19-CV-01375-MEH, 2020 WL 7260742 (D. Colo. Dec. 9, 2020).


On the gender and age discrimination claims arising under Title VII, the court found the

employer established a legitimate, nondiscriminatory reason for her termination based on conduct that violated its conduct standards. Specifically, the court held that the employer justified its departure from progressive discipline by showing (1) the conduct “irreparably damaged her ability to lead her subordinates,” (2) its conduct guidelines expressly allow progressing directly to termination for “harassment of United employees for any reason,” and (3) there was no comparator evidence of prior inconsistent treatment (i.e., no evidence of similarly situated employees engaging in like conduct which was not terminated for violating these policies). However, the court denied the employer’s motion for summary judgment based upon the state-law claim, noting the Colorado off-duty activities law “was meant to provide a shield to employees who engage in activities that are personally distasteful to their employer, but which activities are legal and unrelated to an employee’s job duties.”26 This case illustrates the importance of considering state law in conjunction with the federal statutory framework since many states have greater enacted protections for off-duty employee conduct.

IV. Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination based on race, color, religion, sex and national origin. Where an employee’s online speech relates to one of the categories protected by Title VII, it may also be protected and therefore any employer disciplinary action regulating such speech may risk claims of harassment or discrimination. Conversely, online speech disparaging any person or group on the basis of their race, religion, sex or national origin may run afoul of Title VII’s prohibition and require an employer to take action in order to avoid claims of a hostile work environment.

For example, in Ellis v. Bank of N.Y. Mellon Corp, the Plaintiff, Ellis, was hired on an at-will basis and acknowledged that adherence to the company’s code of conduct and social media policy was a condition of her employment.27 Ellis, who is white, was terminated for violating these policies vis-à-vis a Facebook post that caused public outrage.28 Specifically, Ellis commented on a local news story about a councilman who was arrested for driving through a crowd demonstrating in protest again the killing of Antwon Rose Jr., a young African American man who was shot and killed by the police a few days prior.29 Her post stated “Total BS. He should have taken a bus to plow through [sic].”30 Her Facebook account was set to public and therefore visible to those outside of her immediate network. Viewers were quickly able to ascertain that she was a Vice President at BNY Mellon and the company became inundated with complaints.31 The complaints all asked “whether Ellis's post reflected the values of the Company and condemned the post for encouraging violence.”32 In an introductory letter to the code of conduct, the BNY Mellon CEO

26 Id. at *9; see also Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458, 1462 (D. Colo. 1997). 27 Ellis v. Bank of N.Y. Mellon Corp., 2020 WL 2557902, slip op. *1-2 (W.D. Penn. May 20. 2020) (granting summary decision to employer in Title VII claim for termination due to violation of social media policy and code of ethics), aff'd, 837 F. App'x 940 (3d Cir. 2021) 28 Id. 29 Id at *2-3 30 Id. 31 Id. 32 Id at *3


stated that employees are required employees “to exercise good judgment” and conduct themselves “in a manner that is above reproach.”33 The code explicitly states that employees:

are expected to "respect [their] clients, communities[,] and one another" and to be "accountable for [their] own and [their] team['s] actions."…. when an employee is uncertain whether something is "right", the employee must ask, "could the action affect the company's reputation?" or "would it look bad if reported in the media?" "If the answer to [either] of these questions is 'yes,'" the employee must speak with a manager, the Compliance and Ethics Department, Legal or Human Resources, or the Ethics Office before doing anything. In fact, employees are encouraged to be persistent and not to stop searching for an answer until they get the help they need.34

Though Ellis understood compliance with the above referenced code was a condition of her employment, she believed she was terminated because of her race and presented alleged comparators to the Court as proof of this discrimination.35 The first comparator, was an African American employee who did not work in the same division as Ellis. The employee allegedly also made a post on Facebook after the police killing of Antwon Rose Jr. Her posts were as follows:

“Against my better judgment, I just read some comments related to Antwon Rose, Jr. running. Here's an idea, if you've never experienced what it feels like to be in a situation that could result in your death, NO MATTER WHAT YOU DO...please, kindly, Shut TF Up.*note* This message is NOT race specific. It's for people who say and I quote, ‘Why wouldn't he just follow the officer's command? They are the law!’”36

About five months after Ellis was terminated, Mann posted:

“I was always afraid to have a son because it always seemed that everyone was trying to kill black men (and so many are trying to kill them). It seemed that girls were easier, safer. Sure, they could get into some trouble but it didn't feel like people were actively trying to kill them. Well, Sandra Bland and others brought so much to light about police brutality and this story reminds us that one sick, angry piece of trash can take your daughter away from you. A man who raises his hand to a woman in anger should pick a bridge and step right tf off.”37

BNY Mellon received a complaint regarding Mann’s posts from a friend of Ellis which resulted in a meeting between Mann and in-house counsel, whereby Mann was advised to be mindful of

33 Id at *9 34 Id *9-10 35 Id at *14-16 36 Id at 16-17 37 Id at *17


what she posts on social media and to change her privacy settings to private.38 The company did not take any further action against Mann.39

The another comparator named was an African American contractor who posted on Facebook “Good I hope they hit him and that pig” after the police officer who killed Antwon Roe Jr. was acquitted and shots were fired into his attorneys office.40 The employee was terminated immediately from his assignment as BNY Mellon determined that his post “was violent, encouraged violence, violated multiple BNY Mellon policies, and appeared to express a desire for both the police officer and his attorney to be killed.”

After reviewing the record and the comparators presented by Ellis, the Court granted BNY’s motion for summary decision. First, the court found Ellis failed to “identify a similarly situated individual who was not a member of her protected class and was treated more favorably.”41 Factors relevant to determine whether or not someone is similarly situated include:

“whether the two employees dealt with the same supervisor, had the same job description, were subject to the same standards, engaged in the same conduct, and the particular criteria or qualifications identified by the employer as the reason for the adverse action.”42

Here, the Court took issue with the alleged comparators as “they worked in different positions, in different departments, had different responsibilities, and reported to different supervisors than Ellis did.”43 Further the content of the Facebook posts were different. Citing to an Eastern District of Pennsylvania decision, the court determined that Mann and Reed were not proper comparators because “Ellis's post does not compare with Manns's or Reed's in either content or manner.”44 Specifically, the Court found that Ellis’ comment showing solidarity with a councilman who drove through a group of protestors was on a public news story and anyone reading the article could see her post, while Mann and Reed’s posts were not posted along with a news story and they did not show solidarity to acts of violence.45 Based on the foregoing and the fact that Ellis’ race was never mentioned during the discussions leading up to her termination, the Court granted BNY’s motion for summary decision. V. Hostile Work Environment and Social Media

Under Title VII, employees can sue their employers for failing to prevent or correct harassment and, specifically, for conduct that creates a “hostile work environment” so long as it relates to one of the protected categories covered by Title VII. Hostile work environment claims place a difficult burden on employees. Employees must show “harassment ‘sufficiently severe or

38 Id. at *17-18. 39 Id. 40 Id. at *18. 41 Id. at 27 (citing White v. Purolite Corp., 2020 WL 1875632, at *3 (E.D. Pa. Apr. 15, 2020)) 42 Id. at 27-28. 43 Id at 28. 44 Id at 29. (citing See Koslosky v. Am. Airlines, Inc., 2020 WL 1984886, at *5 (E.D. Pa. Apr. 27, 2020)(explaining that the content of a Facebook post matters when it comes to determining whether a person is a proper comparator). 45 Id at 29-31.


pervasive so as to alter the conditions of [their] employment and create an abusive work environment."46 Hostile work environment claims based on social media messages and posts are further complicated by posts that come from an unidentifiable IP address or individual—the employee is burdened with providing proof that such messages are actually coming from a co-worker or someone that works for their employer.

In Maldonado-Cátala v. Municipality of Naranjito, the Plaintiff worked as an emergency

technician for Municipality’s Emergency Management Office (EMO) and filed a suit alleging violations of federal discrimination laws, and specifically made a claim of hostile work environment based on messages she received from anonymous individuals calling her derogatory names based on her sexual orientation including “nasty lesbian," "whore," "snake," and "dike" as well as a message stating “"I will see you fall you dirty lesbian and every one of you one by one what you did to that man the one from emergency management . . . remember that you have children that by the way the boy is gay and the girl is a lesbo . . . ." 47 The Plaintiff filed a police report upon receipt of these messages and the police determined that someone within the municipality had sent her these messages, but they could not identify the individuals who sent the messages.48 The police could not further investigate because of the statute of limitations but she requested that her employer, the Mayor, pursue the investigation.49 To her knowledge no such investigation ever took place. However, because the Facebook posts occurred while she was on leave, the Court determined that it was debatable that the posts contributed to a hostile work environment.50 Further the court found that the Plaintiff failed to explain how “how her daily work life was impacted by her superiors' failure to investigate the Facebook posts following the police investigation.”51 Thus, the court granted summary judgment in favor of the employer.

Similarly in Davis v. Tyson Fresh Meats, Inc., part of the Plaintiff’s claim for hostile work environment had to do with offensive social media posts.52 He received messages from another co-worker that used racial epithets and threatened to harm and kill the Plaintiff.53 An HR employee investigated these threats but found that the Plaintiff’s claim of workplace violence and threats was unsubstantiated as they could not identify the IP address of the individual who sent the messages.54 However, shortly thereafter, other employees began receiving threats via Facebook and one of the employees took it upon himself to investigate and was able to identify the sender, a relatively new employee, who was terminated thereafter. 55 About a month after receiving the death threat, the Plaintiff was disciplined for insubordination.56 In response, Plaintiff sent an email to management at Tyson complaining about the events that transpired leading up to his discipline as well as the company’s failure to take his complaint about the death threat seriously.57 The

46 Maldonado-Cátala v. Municipality of Naranjito, 876 F.3d 1, 10 (quoting Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 27 (1st Cir. 2011)) 47 Id at 5 48 Id. 49 Id. 50 Id at 10. 51 Id at 11 52 Davis v. Tyson Fresh Meats, Inc., 2020 U.S. Dist. LEXIS 205244, *21 (M.D. Tenn. November 3, 2020) 53 Id 54 Id at 22-23. 55 Id. at 23-24. 56 Id. at 24. 57 Id. at 24-25


company conducted an internal investigation into Plaintiff’s allegations, but ultimately found that his complaint to be unsubstantiated. 58 The Plaintiff ultimately resigned filed suit in federal court, claiming that he was constructively discharged in violation of Title VII and that he was a victim of a hostile work environment based on the company’s failure to investigate the Facebook messages he received.59 The Court held Plaintiff’s allegations did not provide sufficient evidence to establish a hostile work environment claim; specifically, that Tyson was unable to determine who sent the message to him and after learning the perpetrators identity from another employee, terminated him. Based on the foregoing, the Court granted summary judgment on this claim in favor of the employer.60 VI. The National Labor Relations Act

Employees and employers are increasingly communicating with each other, their customers, and the public through social media. Over the course of the last decade, the National Labor Relations Board’s (“NLRB”) case law has evolved to address important issues that have developed around social media and the workplace. This section will address the evolution of the Board’s precedents regarding employer social media rules, employee discipline based on social media activity, and social media issues in Board remedies.

Employer Social Media Rules

Employer rules that interfere with Section 7 rights violate Section 8(a)(1) of the Act where they: (1) explicitly restrict Section 7 activity, (2) are promulgated in response to Section 7 activity, or (3) are applied to restrict Section 7 activity.61 The Board finds a violation where an employer maintains a rule that would reasonably tend to chill employees in the exercise of their rights under the Act.62

The Board’s analysis of facially neutral rules that could potentially impact Section 7 activity was modified in The Boeing Co.63 Under Boeing, the Board evaluates the nature and scope of the rule’s impact on Section 7 activity from a reasonable employee’s perspective and the employer’s legitimate justifications for maintaining the rule. Thus, an employer may violate Section 8(a)(1) by maintaining a rule that employees would reasonably believe prohibited or interfered with their Section 7 rights that was not outweighed by the employer’s justification for the rule.64 Under Boeing, the Board assigns facially neutral rules to one of three categories:

58 Id. at 28. 59 Id. at 31. 60 Id. 52-55. 61 See Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), overruled in part by The Boeing Co., 365 NLRB No. 154, slip op. at 1, 3, 7-14 (Dec. 14, 2017) (establishing new analysis for evaluating facially neutral rules that potentially impact Section 7 activity), and overruled in part by AT&T Mobility, LLC, 370 NLRB No. 121, slip op. at 4-8 (May 3, 2021) (unlawful application of otherwise lawful rule does not automatically render maintenance of the rule unlawful). 62 See Lafayette Park Hotel, 326 NLRB 824 (1998). 63 The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017). 64 Boeing, 365 NLRB No. 154, slip op. at 3-4, 14-16.


• Category 1:65 Rules lawful when reasonably interpreted, because:

o Category 1(a): Rules do not prohibit or interfere with Section 7 rights; or o Category 1(b): justification outweighs the rules’ potential adverse impact on

Section 7 rights • Category 2: Rules warranting individualized scrutiny to determine whether they would

prohibit or interfere with Section 7 rights and whether they are supported by legitimate justifications that would outweigh any adverse impact on Section 7 activity.

• Category 3: Unlawful rules that prohibit or interfere with Section 7 activity whose justifications do not outweigh the rules’ adverse impact on Section 7 rights.66

In Boeing, the Board rejected part of the Lutheran Heritage standard, arguing that it led to inconsistent results, was inconsistently applied, and failed to consider legitimate employer justifications for maintaining the contested rule. Boeing also overruled its precedent finding violations of the Act where an employer maintains rules requiring employees to foster “harmonious interactions and relationships” or to or conduct themselves in a “positive and professional manner.”67

The Board applies Boeing to employer social media policies. In Newmark Grubb Knight Frank,68 the Board applied Boeing to the employer’s social media rules, finding that each fell within Boeing Category 1(a) and were, therefore, lawful. The rules in question prohibited employees from (1) using social media during working time, (2) posting on social media platforms that the employer could not capture or monitor, and (3) providing inaccurate information in posts affiliated with the employer. The employer’s rule also encouraged employees with personal social media accounts to make clear that their statements did not represent the employer and to avoid (1) using their work email or contact information, (2) making false or misleading posts, (3) disclosing confidential information of the employer, its clients, business partners, or staff, (4) violating company policy or applicable laws, including prohibitions against intimidation, threats of violence, discrimination, harassment or retaliation, unauthorized use of others’ intellectual property, or spamming. In deciding that the rule was lawful, the NLRB found that employees would reasonably understand that the policy started out by regulating social media use when the employee was speaking in their capacity as an employee and then later makes clear the portion of the policy that applies to personal social media usage, which the Board found did not prohibit Section 7 activity.69

In Motor City Pawn Brokers Inc.,70 the Board found lawful a social media rule prohibiting employees from disclosing confidential or proprietary information. The Board noted employees would reasonably understand that the rule was limited to proprietary information and not targeted at employee terms and conditions of employment or Section 7 activity because the types of

65 See Boeing, 365 NLRB No. 154, slip op. at 15 (no-camera rules supported with legitimate justifications, rules requiring harmonious interactions and relationships in the workplace are Category 1 rules); also see LA Specialty Produce Co., 368 NLRB No. 93, slip op. at 2 (Oct. 10, 2019) (redesignating the subdivisions of Boeing Category 1 as (a) and (b)). 66 See Boeing, 365 NLRB No. 154, slip op. at 15 (barring employees from discussing wages or benefits is example of Category 3). 67 See Boeing, 365 NLRB No. 154, slip op. at 3 nos.9-11, 4 n.15, 15 n.76, 19 n.89. 68 369 NLRB No. 121 (July 16, 2020). 69 Newmark 369 NLRB No. 121, slip op. at 3-4. 70 369 NLRB No. 162 (July 24, 2020).


information identified as prohibited from disclosure did not trench upon union or protected activity, e.g., trade secrets, financial records, client and merchant lists, product development, financial records, pricing records, business forms, and strategic planning information.71

Additionally, in Bemis Company, Inc.,72 the NLRB held that a social media rule was a lawful Boeing Category 1(a) rule that employees would reasonably understand was intended to safeguard the reputation and interests of the company by regulating employee references to the company on social media. In Bemis, the employer’s rule instructed that employees should:

“be respectful and professional, must not disclose proprietary information, must respect their coworkers, and must not harass, disrupt, or interfere with another person’s work or create an intimidating, offensive, or hostile work environment.”73

The Board held that employees would reasonably understand that adhering to the specific expectations would not infringe on their Section 7–protected rights to discuss, criticize, or complain about working conditions with coworkers or the public when using social media.

Also, in Medic Ambulance Service, Inc.,74 the Board found lawful the employer’s social media rule prohibiting employees from using “company logos, trademarks, or other symbols in social media” including a prohibition on using the company name “to endorse, promote, denigrate or otherwise comment on any product, opinion, cause or person.” In coming to this conclusion, the Board reasoned that an objectively reasonable employee would read the prohibition in the context of another rule “aimed at preventing employees from speaking on behalf of the [employer] rather than prohibiting employees from referring to the [employer] by name in a post critical of [its]terms and conditions of employment.”75

Concerted?

The question of whether employee conduct on social media is protected under the Act starts with the Board’s traditional concerted activity analysis. Section 7 of the NLRA protects an employee’s right to, among other things, “engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection.”76 The Board considers activity to be concerted where it is engaged in with or on the authority of other employees.77 This includes activities that seek to initiate, induce, or prepare for group action or that bring group complaints regarding terms and conditions of employment to the attention of management.78

71 Motor City Pawn, 369 NLRB No. 132, slip op. at 3-4, 7. 72 370 NLRB No. 7 (August 7, 2020). 73 Bemis, 370 NLRB No. 7, slip op. at 3. 74 370 NLRB No. 65 (Jan. 4, 2021). 75 370 NLRB No. 65, slip op. at 3. 76 29 U.S.C. § 157 77 Meyers Industries, 268 NLRB 493 (1984) (Meyers I), remanded sub. nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), reaffirmed on remand, 281 NLRB 882 (1986) (Meyers II), affirmed sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987). 78 281 NLRB 882 (1986) (Meyers II).


In social media cases, the NLRB typically looks for evidence that the posts concerned terms

and conditions of employment and were in response to or intended for the posting employee’s co-workers.79 In Pier Sixty,80 the Board held that the employee was engaged in concerted activity when they vented on their Facebook page about a manager’s poor treatment of employees and urged their co-workers to support the union. The post was visible to some of the employee’s coworkers, and it was part of a union organizing drive spurred on in part by concerns over demeaning treatment of employees by managers.81

The NLRB has also held that “liking” a Facebook post constitutes concerted activity. In Triple Play Sports Bar & Grille,82 the Board unanimously found that employees engaged in Facebook discussions principally concerning complaints about owing state taxes because of purported employer errors in tax withholding were engaged in concerted activity protected by the Act. That included the concerted act by one employee of selecting the “like” option in response to the Facebook postings. The Board subsequently concluded, relying on Triple Play, that liking other employees’ Facebook posts constituted protected, concerted activity.83

Protected?

As with other concerted employee conduct, social media posts are still susceptible to claims that they have crossed the line and no longer receive protection under the Act. The Board has yet to endorse a single standard for determining whether an employee has lost protections under the Act based on their social media activity. The guideposts, however, are derived from Board precedents applicable to otherwise protected concerted employee conduct generally.

In 2010, the Board began receiving cases involving employee discipline related to their social media activity. After investigating numerous social media cases, and at the urging of parties seeking guidance on this developing area of the law, then Acting General Counsel Lafe Solomon issued a series of memoranda in 2011 and 2012 describing cases where the GC found employee social media activity to be protected and cases where they did not. The memos also described employer social media rules and explained where those rules did or did not run afoul of Board

79 See e.g., North West Rural Elec. Coop., 366 NLRB No. 132, slip op. at 1, n.1 (July 19, 2018) (power line worker engaged in concerted activity by posting workplace safety complaints on Facebook page visible to co-workers). 80 362 NLRB 505 (2015) (abrogated in part on other grounds, General Motors, 369 NLRB No. 127 (July 21, 2020)). 81 Id. at 505-06. See also Bettie Page Clothing, 359 NLRB 777, 777-78 (2013) (Facebook posts by employees about management’s failure to address safety concerns they had raised were concerted). 82 361 NLRB 308 (2014), enforced 629 Fed. App’x 33 (Oct. 21, 2015). 83 See Mexican Radio Corp., 366 NLRB No. 65 (Apr. 20, 2018) (holding that employees’ reply-all emails agreeing with complaints regarding working conditions by a former co-worker were protected; ALJ, affirmed by the Board, cited Triple Play for the proposition that a worker is engaged in protected concerted activity when they like a Facebook post concerning on-going work issue). See also Bettie Page Clothing, 361 NLRB 876, 876, n.1 (2014); Desert Cab, Inc. d/b/a ODS Chauffeured Transportation, 367 NLRB No. 87 (Feb. 8, 2019) (employee Facebook post liked by several co-workers expressing criticism of employer polices was protected concerted activity); Novelis Corp., 364 NLRB No. 101, slip op. at 2-3, n.12, 41-42 (Aug. 26, 2016), enforced in relevant part, 885 F.3d 100 (2d Cir. 2018) (employee Facebook post liked by 11 of their co-workers criticizing wages and expressing anger towards “NO Voters” for the union’s narrow election loss was protected concerted activity).


law.84 In late 2012, the Board issued its first decision involving social media activity applying established Board law.85

In 2014, the Board issued Triple Play, supra, in which its social media analysis began to more clearly take shape. In Triple Play, the employee Facebook posts at issue were visible to at least some customers and included expletives and harsh criticism of the employer regarding purported tax withholding errors that had resulted in increased tax liability for the employees. In deciding the case, the Board analyzed the facts under its disloyalty analysis (Jefferson Standard86) and its defamation analysis (Linn v. Plant Guards Local 11487).

The Board applies Jefferson Standard to employee communications to third parties to determine whether that communication has lost the protections of the Act. In making such a determination, the Board considers whether (1) the communication indicates it is related to an ongoing labor dispute; (3) the communication is disloyal, reckless or maliciously untrue; and (3) the communication was reasonably calculated to harm the company’s reputation and reduce its income. Under Linn, the employer can demonstrate that an employee’s statement was defamatory, thereby losing the protection of the Act, by a showing that the statement was recklessly untrue and caused actual harm. The Board in Triple Play found that the employees’ posts (and likes) did not lose protection under either Jefferson Standard or Linn because the posts were related to a labor dispute about the employer’s tax withholding practices, were not maliciously untrue, and were not intended to, nor did they, cause the employer actual harm.

The Board in Triple Play declined to apply the now-overruled Atlantic Steel88 factors in the social media context. The Atlantic Steel factors were designed to balance employee rights with the employer’s interest in maintaining discipline in the workplace, especially where the employee had a face-to-face altercation with a manager at the work site. The social media cases did not fit within this framework, and the Board developed a since-overruled “totality of the circumstances” test to address whether employee social media activity was protected under the Act.89

In General Motors,90 a case not involving social media activity, the Board rejected the totality of the circumstances test in the social media context, choosing instead to apply the Wright

84 See OM Memorandum 11-74 (August 18, 2011); OM Memorandum 12-31 (January 24, 2012); OM Memorandum 12-59 (May 30, 2012). 85 See Karl Knauz BMW, 358 NLRB 1754 (2012) (finding employee Facebook posts about embarrassing car accident on the lot of dealership did not amount to protected concerted activity); Hispanics United of Buffalo, Inc., 359 NLRB 368 (2012) (employees’ Facebook posts about co-worker criticism of their job performance was protected concerted activity). 86 NLRB v. Local Union No. 1229, IBEW (Jefferson Standard), 346 U.S. 464 (1953). 87 383 U.S. 53 (1966). 88 Atlantic Steel Co., 245 NLRB 814 (1979). To determine whether an employee loses the Act’s protection under Atlantic Steel, the Board balances four factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practices. 89 See Desert Springs Hospital Medical Center, 363 NLRB No. 185, slip op. at 1 fn. 3 (2016); Pier Sixty, 362 NLRB at 506. 90 General Motors LLC, 369 NLRB No. 127 (July 21, 2020).


Line91 framework for cases involving employee discipline for offensive or abusive communications in the course of concerted activity otherwise protected under Section 7 of Act.92 General Motors does not impact the application of Jefferson Standard or Linn to decide if social media posts were sufficiently disparaging or disloyal to remove them from the Act’s protections. Rather, General Motors only alters the standards applied in social media cases when an employee is disciplined for abusive conduct.93 Thus, while Atlantic Steel and the totality of the circumstances appear to have been rejected, Jefferson Standard and Linn remain.

Social media and remedies

The Board has also scrutinized employer social media activity to determine whether it violated the Act.94 In recent cases where the employer’s social media activity was at the heart of the violation, the Board has crafted remedies that specified affirmative actions to be taken related to the employer or manager’s social media presence.

For instance, in FDRLST Media, LLC,95 the Board found the employer liable for a tweet posted by one of its executive officers on their private Twitter account that threatened unspecified reprisals if the employees formed a union. Specifically, the executive tweeted: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” The Board found that employees would reasonably view the message as a threat to take swift action against any employee who tried to unionize in violation of Section 8(a)(1). As part of its remedy, the Board ordered the employer to direct the executive to delete the coercive statement from his private Twitter account and take unspecified “appropriate steps” to ensure they complied.

And, more recently in Tesla, Inc.,96 the Board held the employer committed a ULP when CEO Elon Musk tweeted that employees at a Fremont, California facility would lose their stock options if they chose union representation. As part of the remedy, the Board ordered the employer to direct Musk to delete the unlawful tweet from his personal @elonmusk Twitter account. Also, as a result of the broad audience that may have seen the original post on social media (or through

91 251 NLRB 1083 (1980) enforced 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989, approved in NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (1983). Under Wright Line, the General Counsel must initially show that (1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity. Once the General Counsel makes their initial case, the employer will be found to have violated the Act unless it meets its defense burden to prove that it would have taken the same action even in the absence of the Section 7 activity. 92 General Motors, 369 NLRB No. 127, slip op. at 7. 93 369 NLRB No. 127, slip op. at 6, n.16, 9-10. 94 See, e.g., Advance Pierre Foods, Inc., 366 NLRB No. 133 (July 19, 2018) (unlawful employer surveillance of union activity through internet searches and review of employees’ social media-based union activity); Jimmy John’s, 361 NLRB 283 (2014), enforced in relevant part, 861 F.3d 812 (8th Cir. 2017) (management harassment of union-supporting employee on Facebook page started by anti-union employees and visible to other employees and managers). 95 370 NLRB No. 49 (Nov. 20, 2020). 96 370 NLRB No. 101 (March 25, 2021).


the numerous retweets and further dissemination over other social media platforms and traditional media),97 the Board ordered a nationwide notice posting regarding the tweet ULP.

Additionally, NLRB General Counsel Jennifer Abruzzo has also made clear that the Agency will continue to pursue social media remedies in appropriate cases. In GC Memo 21-06 (September 8, 2021), Abruzzo stresses the difficulty in restoring the “laboratory conditions” necessary for a free and fair election once the employer has committed once an employer has subjected its workers to “unlawful firings, threats of retaliation, surveillance, and other coercive tactics designed to root out and squelch union support among employees.” The Memo goes on to enumerate a non-exhaustive list of potential remedies that Regions should seek in appropriate cases, including “[p]ublication of the notice in newspapers and/or other forums (such as online publications and websites maintained by an employer, including social media websites), chosen by the Regional Director and paid for by the employer, so as to reach all current and former affected employees, as well as future potential hires.” The Memo also instructs Regions to seek Orders in failure to bargain cases that direct “the distribution of the notice by text messaging and by posting on social media websites and on any internal apps used by an employer to communicate with its employees.” GC Memo 21-07 also calls for Regions to seek notice postings using social media in settlement agreements, specifically noting that “[i]t would certainly make sense to insist on posting on a public social media website where, for example, the website was used in the commission of an unfair labor practice.”

Given these recent developments, it seems likely that social media will play a more pronounced role in remedies, especially where the violation found was committed over a social media platform.

97 According to the Board’s decision, the unlawful tweet was viewable by Musk’s 22,700,000 Twitter followers and was further disseminated “via Twitter, Facebook, radio, television, newspapers news media, and various other print and social media platforms.” Tesla, Inc., 370 NLRB No. 101, slip op. at 9 (Mar. 25, 2021).

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