Just when you thought it was safe to go back in the water, the NLRB issued two new decisions in social media cases, one ordering the reinstatement of a tour bus driver who complained about his employer on a facebook page and the other striking down a hospital’s social media policy. This continues the Board’s frontal assault on social media in the workplace, which we blogged about just a few days ago (click on our social media tab for more decisions in this area).
In the first case, the Board found that Fred Pflantzer, a tour bus driver, engaged in protected activity when he complained about the lack of health care insurance, minimal sick and vacation days, unsafe buses, and payroll practices with On Board Tours, his former employer. In particular, he applauded City Sights, another tour operator where he worked before On Board, calling it a “worker’s paradise” compared to On Board. Pflantzer applauded the work of a labor union in creating a positive workplace at City Lights and informed the readers of the benefits of having a labor union. On Board admitted that this post — which it considered libelous — was a motivating factor in its decision to terminate Pflantzer and the Board found that such activity was protected under Section 7 of the National Labor Relations Act, even though there was no evidence that any other On Board employees had access to the facebook page, which was private.
In the second case, an administrative law judge for the NLRB found that the University of Pittsburgh Medical Center had an overly broad social media policy and ordered parts of it to be removed. In particular, UPMC’s policy prohibited employees from:
- soliciting employees “to support any group or organization”
- using e-mail “in a way that may be disruptive, offensive to others, or harmful to morale”
- limiting use of e-mail and social media to “authorized activities.”
The ALJ found that while those policies were not necessarily targeted at prohibiting protected activities, they were ambiguous enough so that they would “chill” employees from engaging in protected, concerted activities. For that reason, they were overbroad and must be removed.
While it remains very possible that a court will reverse these decisions, it remains of paramount importance for employers to: (1) review their social media policies to ensure that they are not overbroad; and (2) consult with counsel any time they are disciplining or terminating an employee based on his online activities. We expect many more social media decisions to follow in the coming months and we will keep you posted on them.
- Dan Handman