Word to the Wise

Decades before employees began using Facebook and other social media to vent, complain, or otherwise discuss their wages and other working conditions, Congress passed the National Labor Relations Act (NLRA) in the 1930s to give workers across the country the right to engage in such activities. When the National Labor Relations Board (NLRB) concluded that an employer had disciplined an employee for engaging what is known as “protected concerted activity,” the board often ordered corrective action, which may have included back pay and reinstatement.

In the more than 70 years since the NLRA was enacted, neither the law nor the labor board’s interpretation of the law has changed dramatically. What has changed is how employees communicate with each other and how many engage in conduct that may constitute protected concerted activity. Instead of face-to-face or water cooler conversations, many employees now communicate through Facebook and other semi-public social media forums, which leaves a trail of evidence for others to follow.

The social media phenomena hasn’t gone unnoticed by the NLRB, which has been laser-focused on applying decades old legal principles to this modern means of employee communication. As of press time, the board’s general counsel had issued 10 separate memoranda addressing employees’ use of social media and employer policies regulating such use. NLRB administrative law judges have decided numerous social media cases against both union and non-union employers. The board has issued two published decisions involving employees’ Facebook postings. In one case, the employer prevailed because the NLRB determined that the employee’s sarcastic comments about the employer were not protected concerted activity but were instead comments made solely by the employee without any discussion with other employees and did not concern the employee’s terms and conditions of employment.

In the other case, the board ruled in favor of the terminated employee, concluding that her Facebook postings in response to a co-worker’s criticisms of her job performance and that of other co-workers was protected concerted activity because it was a call to group action that related to their working conditions.

Of course, all of the decisions made by the NLRB over the past year, including those on social media, may be invalid. On Jan. 25, 2013, the D.C. Circuit Court ruled that President Obama’s recess appointment of three individuals to the board a year earlier exceeded his powers under the Constitution. The case concludes that the agency lacks a quorum and is unable to conduct business. The decision surely will be appealed to the Supreme Court by the Administration. Until this is resolved, most companies will still need to institute policies that keep the current direction of the NRLB in mind.

Why does this matter to hotels?
While the NLRB’s current enforcement position on social media affects all industries, employers who have a significant number of younger employees, such as hotels, are likely to have more social media users. For many who grew up with social media, they may not think twice about using this method of communication to complain about pay, each other, work schedules, difficult guests, supervisory decisions, or work in general. Moreover, they don’t even have to understand the concept of protected concerted activity to benefit from the law.

Given the likelihood that one or more of your employees will use social media to complain about the hotel and their work, as well as the reality that the NLRB is unlikely to change its enforcement position any time soon, hotel owners and operators should have a plan in place to deal with these situations. The first step is to review your current policies. The board has recently and repeatedly found overbroad any regulations that can reasonably be construed as prohibiting employees from using Facebook or other social media sites to complain about the terms and conditions of their employment. In those cases, the board has determined that maintenance of such a policy is an unfair labor practice and has ordered the employer to remove or modify it. Consequently, any employee discharged pursuant to such a policy may be entitled to reinstatement with back pay.

With the NLRB’s focus on social media cases and its recent expansion of other worker protections, prudent employers should take a long, hard look at their employee handbooks to eliminate any policies that may trigger corrective action:

– Eliminate policies that require employees to maintain confidentiality over wages, bonuses, or commissions
– Review social media policies for nonspecific terms that need further definition or stricter language
– Adjust overly broad language that prohibits employees from discussing company policies, schedules, safety, dress codes, work assignments, other staff, or management
– Eliminate or change language that prohibits posting of company logos, company name, identification of employee with the company, etc.
– Where legitimate issues are involved, define information that the company considers confidential (private employee data, guest information, strategic marketing plans, financial particulars)
– Consider a disclaimer at the end of the social media policy that makes clear that the policy is not intended to restrict an employee’s Section Seven Rights under the NLRA

With defensible policies in place, the next step is to adopt a response plan to unfavorable employee postings. Not all such postings will be considered protected concerted activity. For example, postings containing threats of violence or those violating a hotel’s harassment or guest confidentiality policy would not be protected. Conversely, those postings in which employees are unequivocally discussing or complaining about terms and conditions of employment likely are protected. Unfortunately, there is no absolute test for determining which posts are protected and which are not.

In evaluating how to address a worker’s personal postings on social media, the employer must contrast situations where the worker’s complaint involves other employees and is about things such as wages or working conditions versus a lone gripe about something a guest said or did.

Andria Ryan is a partner and Reyburn Lominack an associate at Fisher & Phillips.