Technology and Employment Law: Fighting the at-Will Status with Social Media

By: Earvin Poon

In the 21st century of employment law, social media is the new frontier. For employers, social media can be a blessing but also a curse; it serves as a new advertising medium but allows for readily accessible, public reviews. But for employees, social media may be the means to even the playing field against their at-will status.

At-Will Status and Social Media’s Influence on Business

At-will status means that an employer may terminate the employee “at their pleasure” absent a contractual relationship stating otherwise.[1] All states in the United States of America have at-will provisions in their employment statutes. Different states might express their at-will provision differently, but the idea remains the same: the employee may be terminated at will.[2] The question is not which states are at-will, but which states offer exceptions. Those exceptions are (A) public policy, (B) implied contract, and (C) just cause. Despite these exceptions, employees remain largely at the mercy of their employers. Impressions of “So long as I do a good job, I won’t get fired,” are antiquated in the face of mass layoffs in the recent decades.[3] So what can an employee do if they have no contract or have a union to negotiate on their behalf? How can an employee express their dissatisfaction against their employer without being at the complete mercy of their at-will status? The answer may be social media.

Social media offers substantial influence in today’s world. A single, negative tweet on Twitter can cost a company billions.[4] For example, on December 12, 2016, the President of United States Donald Trump posted a single, negative tweet about Lockheed Martin – the US’s premier jet fighter manufacturer – regarding the cost of its fifth-generation fighter program. The posting of that tweet correlated with a two percent drop in the company’s valuation, or a loss four billion dollars.[5] On December 22, 2016, President Trump made a second, similar tweet that would cost Lockheed Martin another 1.2 billion dollars.[6] Admittedly, President Trump isthe presidentand therefore holds much sway over the opinions of many; as such, it is unreasonable to think that any single individual could have the same level of impact on the market. Nevertheless, President Trump’s tweets represent a trend in the last decade that may help employees gain ground against at-will policies. Social media platforms like Twitter or Facebook provide the everyday individual tools to engage in transparency on behalf of a company whether the company desires it or not. For example, in April 2017, passengers captured an incident that involved United Airlines having a doctor forcibly removed from a plane after overbooking the flight.[7] Over nineteen million individuals saw the video before it was taken down.[8] And the subsequent negative press correlated to a drop in United Airlines’s valuation “as much as 6.3% in pre-market trading,” or 1.4 billion dollars.[9] United Airlines would later relive its public-relations nightmare when it dealt with the ensuing lawsuit by the doctor, as well as lawsuits by the former officers that it had fired for following orders to remove the doctor.[10]

But how might an employee use social media to protect themselves? That answer is under Section 8(a)(1) and 7 of the National Labor Relations Act (“NLRA”).

The Law: Section 8(a)(1) and 7 of the NLRA

Section 8(a)(1) protects rights guaranteed to employees under Section 7.[11] It states that “it shall be unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”[12] The NLRB has interpreted the provision as asking “whether [an employee’s contract provision] would reasonably tend to chill employees in the exercise of their Section 7 rights.”[13] To determine whether a contract would reasonably tend to chill employees in the exercise of their Section 7 rights, the NLRB looks for any of three considerations: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”[14] And given that the NLRA’s purpose is to protect employees, it is NLRB’s policy to find ambiguous employer rules against the employer.[15]

Section 7 provides employees “the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]”[16] Concerted activities involves “two or more individuals act[ing] in unison to protest, or protect, their working conditions.”[17] But a single individual’s action may be considered concerted and therefore receive protection too.[18] An individual employee’s action is concerted when the individual’s conduct stems from a prior concerted activity.[19] For example, if an individual protests about the same work condition that two or more individuals had protested earlier about, then the single individual’s protest is a concerted activity.[20]

When deliberating if a social media comment is protected under the NLRA, the NLRB considers nine factors: “(1) any evidence of antiunion hostility; (2) whether the conduct was provoked; (3) whether the conduct was impulsive or deliberate; (4) the location of the conduct; (5) the subject matter of the conduct; (6) the nature of the content; (7) whether the employer considered similar content to be offensive; (8) whether the employer maintained a specific rule prohibiting the content at issue; and (9) whether the discipline imposed was typical for similar violations or proportionate to the offense.”[21] Though this is a totality of the circumstances test, the NLRB may consider fewer than the nine factors in making its decision.[22]

Analysis of How the NLRA Protects an Employee’s Social Media Comment

What happens if a contract precludes an employee from making negative comments regarding either the company or the management? Is the employee then contractually obligated to not protest? No.

Broad provisions in a contract that prohibit damage to the company, defamation of any individual, or damage of any person’s reputation are unlawful.[23] In the case of Costco Wholesale Corp., the company’s employee agreement maintained a provision that prohibited statements that “damage the Company, defame any individual or damage any person’s reputation[.]”[24] Because the NLRB holds broad provisions against the employer, it held that the provision was unlawful since the provision might lead employees to “reasonably conclude that the rule requires them to refrain from engaging in certain protected communications[.]”[25] NLRB then cited examples of other unlawful employer provisions, showing why the company’s provision here was similarly unlawful: provisions that prohibit derogatory attacks, negative conversations, and making false or misleading work-related statements concerning associates, mangers, representatives, or the company.[26] Simply put, an employee is protected by the NLRA to make negative comments about the company that they work for, so long as the NLRB finds that the comments fall within Section 7. And contracts that require otherwise are unlawful.

Social media comments that include profanity also remain protected under Section 7, so long as the comments concern shortfalls or errors on the employer’s part and not about the company’s goods or services.[27] And despite that the public might see the negative comments and so the comments might have a negative impact on the company’s business, if the “discussion was not directed toward customers and did not reflect the employer’s brand[,]” the NLRB and courts have concluded that the employee’s action retains protection under the NLRA.[28]

Conclusion

Recall that social media can have substantial, negative impact on a business. And given the broad protection for employees under the NLRA, the potential threat that social media has on business may incentivize employers to treat their employees better and ensure better work conditions. This article does notsuggest to employees that they use social media platforms as a scare tactic to make demands, but it highlights a means that employees may not have considered in ensuring a more even playing field in the face of their at-will status.

 

[1] Ariz. Rev. Stat.§ 23-1501 (2018).

[2] See Cal. Lab. Code§ 2922 (2018) (“An employment . . . may be terminated at the will of either party on notice to the other.”).

[3] Charles J. Muhl, The Employment-at-Will Doctrine: Three Major Exceptions,

Monthly Lab. Rev., Jan. 2001, at 3, 3.

[4] Berkeley Lovelace Jr., Lockheed Martin Shares Drop After Trump Says F-35 Program Too Expensive,CNBC(Dec. 12, 2016, 4:19 PM), https://www.cnbc.com/2016/12/12/lockheed-martin-shares-drop-after-trump-says-f-35-program-too-expensive.html. A tweet is the colloquial term for a comment made on the popular social media platform Twitter; it also can function as a noun or a verb: for example, Person A posted a tweet on her Twitter account, or Person A tweeted about the weather today.

[5] Id.

[6] Christine Wang, Lockheed Martin Shares Take Another Tumble After Trump Tweet, CNBC(Dec. 23, 2016, 8:48 AM), https://www.cnbc.com/2016/12/22/lockheed-martin-shares-take-another-tumble-after-trump-tweet.html.

[7] Lucinda Shen, United Airlines Stock Drops $1.4 Billion After Passenger-Removal Controversy, Fortune(Apr. 11, 2017), http://fortune.com/2017/04/11/united-airlines-stock-drop/.

[8] Abby Ohlheiser, The Full Timeline of How Social Media Turned United into the Biggest Story in the Country,Washington Post(Apr. 11, 2017), https://www.washingtonpost.com/news/the-intersect/wp/2017/04/11/the-full-timeline-of-how-social-media-turned-united-into-the-biggest-story-in-the-country/?noredirect=on&utm_term=.e4bab274dacf.

[9] Id.

[10] Tony Briscoe, Chicago Aviation Security Officers Sue over ‘Erased’ Work History Following Dragged Passenger Incident, Chicago Tribune(Apr. 11, 2018, 8:10 PM), https://www.chicagotribune.com/news/local/breaking/ct-met-security-officer-sues-united-20180410-story.html.

[11] 29 U.S.C. § 158(a)(1) (2018).

[12] Id.

[13] Costco Wholesale Corp., 358 N.L.R.B. 1100, 1114  (2016).

[14] Id.

[15] Karl Knauz Motors, Inc., 358 N.L.R.B. 1754, 1754-55 (2012). Although flagged on Westlaw and Lexis, the decision and reasoning remains persuasive. The Supreme Court of the United States had found the original board invalidly appointed, but the following validly appointed board adopted the rationale of the case.  Latino Express, Inc., 2015 N.L.R.B. LEXIS 174, 20 n.12 (2015).

[16] 29 U.S.C. § 157 (2018).

[17] Karl Knauz, 358 N.L.R.B. at 1762.

[18] Id.

[19] Id.

[20] Id.at 1763.

[21] NLRB v. Pier Sixty,LLC, 855 F.3d 115, 123 n.38 (2d Cir. 2017).

[22] Id.at 124-26.

[23] Costco Wholesale, 358 N.L.R.B. at 1101.

[24] Id.

[25] Id.

[26] Id.

[27] Three D, LLC v. NLRB, 629 Fed. Appx. 33, 36 (2d Cir. 2015).

[28] Id.at 37.

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