Earlier this month, the National Labor Relations Board (“NLRB”) continued its heavy activity in cases involving social media by issuing two new decisions in this area. In one case, the Board ordered reinstatement of a tour bus driver who complained about his employer on a Facebook page. In another, an administrative law judge struck down a hospital’s social media policy. These decisions are the latest in a long line of NLRB actions in this area and indicate that social media remains an area of priority for the Board.
In the first case, New York Party Shuttle LLC and Fred Pflantzer, the Board found that Fred Pflantzer, a tour bus driver, engaged in activity protected by the National Labor Relations Act (“NLRA”) when he complained on Facebook about his employer. Pflantzer took to the social media site to air his feelings on his employer’s lack of health care benefits, minimal sick and vacation days, unsafe tour buses, and payroll practices. Pflantzer also applauded a competitor tour operator for whom he once worked, calling the competitor a “worker’s paradise” compared to his current employer. Pflantzer also applauded the work of a labor union in creating a positive workplace at the competitor and informed Facebook users of the benefits of having a labor union.
The employer subsequently terminated Pflantzer and admitted that this post was a motivating factor in its decision. The employer defended its actions by arguing that Pflantzer’s post was libelous. The Board disagreed, however, and found that Pflantzer’s posts constituted protected activity under Section 7 of the NLRA. The Board came to this conclusion despite the fact that there was no evidence that any other employees had access to Pflantzer’s private Facebook page.
In the second case, SEIU Healthcare Pennslyvania, an administrative law judge for the NLRB found that the University of Pittsburgh Medical Center had an overly broad social media policy, and ruled that parts of it had to be removed. The policy prohibited employees from:
- soliciting employees “to support any group or organization”
- using email “in a way that may be disruptive, offensive to others, or harmful to morale”
The policy also limited employee use of email and social media to “authorized activities.” The judge found that these provisions were too ambiguous and could potentially chill employees from engaging in protected, concerted activities.
These decisions indicate yet again that the NLRB has taken the offensive when it comes to social media. Employers should make this area a priority and review their social media policies to ensure they are not overbroad. Employers also should obtain sound legal advice when disciplining or terminating an employee based on his or her online activities.
Katie Cassidy Tranter is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.
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