The recent demonstrations around the country have been of considerable interest to our nonprofit’s staff. We encourage open discussions of the issues, and most of the discussions have been courteous and respectful of everyone’s views. One of our employees, who was rather quiet during these conversations, was asked what he thought about these issues and he just said, “Check out my Facebook page.”
When someone did check it out, they were horrified to see several racist images and profanity-laced references to protesters. On his Facebook page, the employee made no secret of the fact that he was one of our employees. One of our community partners called us to object to this post and asked us what we are going to do about it.
So now we ask, what can we do about this?
Intolerant of Intolerance
You are experiencing an issue many employers are having to resolve, given the recent protests and demonstrations over race relations and policing in the United States. As you might expect, many people have taken to their social media accounts and made their thoughts about these events known to their viewing audience. The tone of these posts have run the gamut from thoughtful and reasonable to outright offensive, abusive, and hateful.
Employers of the individuals who post their views have an understandable interest in what these posts say, especially if an employee’s post creates the impression that these views are shared by the employer.
In the last several weeks, there have been several high-profile and immediate firings for expressions that were not “reasonable or thoughtful” but that clearly crossed over instead into hate speech.
Here are just a few examples:
Regardless of where in the tangle of issues a particular employer falls, such expressions of hate and intolerance are inconsistent with most employers’ zero-tolerance policies that require employees to treat everyone with dignity and respect. In these situations, the terminations were appropriate and well-justified. However, when confronted with objectionable comments posted by employees, employers should carefully take stock of the situation before taking action.
Does the First Amendment Protect Such Conduct?
While most of us are aware that the First Amendment of the United States Constitution provides broad protection of a person’s right to express themselves about public affairs, it is important to understand that First Amendment protection applies only to government interference with this right of free speech and expression.
The terminations conducted by the private employers described above would, therefore, not violate the First Amendment rights of those employees.
Other Risks to Consider in Disciplining Employees for Hate Speech Postings
Although not bound by the First Amendment, employers do face other restrictions. It is important to understand these before taking action against employees posting objectionable content on social media:
Making the Decision Easier: Maintain a Clear and Detailed Social Media Policy
As with many workplace decisions, having a clear, detailed, and strongly-worded policy (here is a sample) will assist the employer in dealing an employee’s abusive and offensive social media, should such circumstances arise.
At a minimum, a solid social media policy should include:
In summary, it is important to remember that an employer should never take action against employees who express or post points of view that simply differ from the views of the supervisor, management, or the board of directors. However, when those posted viewpoints cross over into undeniable expressions of hate, bigotry, and intolerance, or encourage violence against anyone, any action the employer takes to deter and prevent those and future such expressions should be recognized as essential to the cultivation of values consistent with a sound and healthy workplace culture.
This column does not constitute legal advice.
Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio. During his legal career, Mike worked for 32 years with a Sacramento law firm, where he focused on employment litigation in both state and federal courts. During that time, he defended employers in litigation. In 2016, he began his work as an Employment Risk Manager for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. Mike lives in Lakewood, Ohio, and is a graduate of the University of California, Davis, with a bachelor’s degree in political science, and a 1982 graduate of the University of the Pacific, McGeorge School of Law.
1. Protection of “Concerted Activity”
The National Labor Relations Act (NLRA) protects the rights of employees to act together to address conditions at work, with or without a union. Thus, employers without unions are subject to the NLRA. An employer’s failure to comply may result in charges of unfair labor practices for policies, litigation before the National Labor Relations Board (NLRB) and in the federal courts, and the undoing of discipline based on the non-compliant policy (including reinstatement of discharged employees with backpay).
Section 7 of the NLRA provides the basic protection for employees acting together (and for which the employees may not be disciplined). Section 7 provides:
This protection of concerted activities extends to certain, but not all, work-related conversations between employees, including those conducted on social media, such as Facebook, Twitter, Pinterest, Snap Chat, and similar social media websites.
In addition, Section 7 protection extends to “communications to the public that are part of and related to an ongoing labor dispute.” Such protected communications include Facebook posts about group concerns which have been raised with the employer. However, merely posting employee complaints to social media sites does not automatically give such postings protected status. An employee’s personal and individual gripes or expressions of frustration with working conditions will likely not be considered as protected activity. 
As a general rule, to be protected, an employee’s posts must:
This general rule comes from the definition of “concerted action” contained in the Meyers Industries case and guidance from the General Counsel of the NLRB.
2. Definition of “Concerted Activity”
a. Meyers Industries.
In a 1986 decision, Meyers Industries, the National Labor Relations Board (Board), found activity to be “concerted” if the conduct is “engaged in with or on authority of other employees, and not solely by or on behalf of the employee himself.”
The Board defined “concerted activities” as:
b. Balance against employer’s needs (legitimate interests)
Under NLRB decisions, the right of employees to engage in “concerted activities” is balanced against legitimate employer rights which include the employer’s property rights and the need for workplace order and discipline, which have long been recognized by the NLRB.
c. Facial challenges
Other decisions have determined that policies can be (facially) challenged under section 7 even before the employer attempts to enforce the policy. In other words, an overbroad policy, even without enforcement action through employee discipline, can result in a charge and a finding of an unfair labor practice.
1) Lutheran Heritage Village – Livonia.
In 2004, the Board set out the current analysis it uses at this time to determine if a policy is overbroad and unlawfully restrictive of section 7 protected concerted activities:
3. NLRB Scrutiny of Social Media Policies
In 2010, the National Labor Relations Board (NLRB), the federal agency that enforces the NLRA, began receiving charges of unfair labor practices in its regional offices related to employer social media policies and to specific instances of discipline for Facebook postings. Following investigations, the agency found reasonable cause to believe that some policies and disciplinary actions violated federal labor law, and the NLRB Office of General Counsel issued complaints against employers alleging unlawful conduct. In other cases, investigations found that the communications were not protected and so disciplinary actions did not violate the Act. 
4. NLRB General Counsel Guidance
To date, the Acting General Counsel has issued three (3) extensive memoranda (August 18, 2011, January 25, 2012 and May 30, 2012) outlining when social media policies are unlawful and when they are not. The third memorandum contains a social media policy which the General Counsel found to be lawful (and which can form the foundation of a well crafted social media policy).
The NLRB website provides this synopsis of the guidance provided by its General Counsel:
More recently, on March 18, 2015, General Counsel issued a Memorandum analyzing employer rules for compliance or non-compliance with Section 7. This Memorandum provides additional guidance to employers in crafting social media rules that will not violate Section 7 rights. Analyzed were rules that pertained to:
Each of these subjects should be reviewed when crafting a new policy for employee social media use.
B. To What Extent May Employers Limit Social Media Use?
As indicated above, an employer has legitimate interests that must be balanced against its employees’ Section 7 rights to engage in “protected concerted action.” These employer rights include, but are not necessarily limited to, property rights and the right to maintain good order and discipline in the workplace. These employer rights of confidentiality and discipline, however, may not preclude or unduly restrict employees’ Section 7 protected concerted activities
As a general rule,
It is helpful for the legal practitioner to review guidance from NLRB’s General Counsel and use the language which has been found to be unlawful and lawful with regard to restrictions on employees. As confidentiality rules and rules regulating conduct towards the employer will likely be most important to employers, the recent (March 18, 2015) NLRB General Counsel guidance is set forth below verbatim. The guidance will also indicate how the NLRB is likely to analyze any employer restriction on social media.
Unlawful Confidentiality Rules
We found the following rules to be unlawful because they restrict disclosure of employee information and therefore are unlawfully overbroad:
In the above rule, in addition to the overbroad reference to “employee information,” the blanket ban on discussing employee contact information, without regard for how employees obtain that information, is also facially unlawful.
Although this rule’s restriction on disclosing information about “other associates” is not a blanket ban, it is nonetheless unlawfully overbroad because a reasonable employee would not understand how the employer determines what constitutes a “lawful Company policy.
While an employer may clearly ban disclosure of its own confidential information, a broad reference to “another’s” information, without further clarification, as in the above rule, would reasonably be interpreted to include other employees’ wages and other terms and conditions of employment.
We determined that the following confidentiality rules were facially unlawful, even though they did not explicitly reference terms and conditions of employment or employee information, because the rules contained broad restrictions and did not clarify, in express language or contextually, that they did not restrict Section 7 communications:
Because the rule directly above bans discussion of all non-public information, we concluded that employees would reasonably understand it to encompass such nonpublic information as employee wages, benefits, and other terms and conditions of employment.
Employees not only have a Section 7 right to protest their wages and working conditions, but also have a right to share information in support of those complaints. This rule would reasonably lead employees to believe that they cannot disclose that kind of information because it might adversely affect the employer’s interest, image, or reputation.
Lawful Confidentiality Rules
We concluded that the following rules that prohibit disclosure of confidential information were facially lawful because: 1) they do not reference information regarding employees or employee terms and conditions of employment, 2) although they use the general term “confidential,” they do not define it in an overbroad manner, and 3) they do not otherwise contain language that would reasonably be construed to prohibit Section 7 communications:
Finally, even when a confidentiality policy contains overly broad language, the rule will be found lawful if, when viewed in context, employees would not reasonably understand the rule to prohibit Section 7-protected activity. The following confidentiality rule, which we found lawful based on a contextual analysis, well illustrates this principle:
This rule uses expansive language that, when read in isolation, would reasonably be read to define employee wages and benefits as confidential information. However, in that case, the rule was nested among rules relating to conflicts of interest and compliance with SEC regulations and state and federal laws. Thus, we determined that employees would reasonably understand the information described as encompassing customer credit cards, contracts, and trade secrets, and not Section 7- protected activity
Employee conduct toward employer.
Employer Handbook Rules Regarding Employee Conduct toward the Company and Supervisors
Employees also have the Section 7 right to criticize or protest their employer’s labor policies or treatment of employees. Thus, rules that can reasonably be read to prohibit protected concerted criticism of the employer will be found unlawfully overbroad. For instance, a rule that prohibits employees from engaging in “disrespectful,” “negative,” “inappropriate,” or “rude” conduct towards the employer or management, absent sufficient clarification or context, will usually be found unlawful. See Casino San Pablo, 361 NLRB No. 148, slip op. at 3 (Dec. 16, 2014). Moreover, employee criticism of an employer will not lose the Act’s protection simply because the criticism is false or defamatory, so a rule that bans false statements will be found unlawfully overbroad unless it specifies that only maliciously false statements are prohibited. Id. at 4. On the other hand, a rule that requires employees to be respectful and professional to coworkers, clients, or competitors, but not the employer or management, will generally be found lawful, because employers have a legitimate business interest in having employees act professionally and courteously in their dealings with coworkers, customers, employer business partners, and other third parties. In addition, rules prohibiting conduct that amounts to insubordination would also not be construed as limiting protected activities. See Copper River of Boiling Springs, LLC, 360 NLRB No. 60 (Feb. 28, 2014). Also, rules that employees would reasonably understand to prohibit insubordinate conduct have been found lawful.
Unlawful Rules Regulating Employee Conduct towards the Employer
We found the following rules unlawfully overbroad since employees reasonably would construe them to ban protected criticism or protests regarding their supervisors, management, or the employer in general.
While the following two rules ban “insubordination,” they also ban conduct that does not rise to the level of insubordination, which reasonably would be understood as including protected concerted activity. Accordingly, we found these rules to be unlawful:
In addition, employees’ right to criticize an employer’s labor policies and treatment of employees includes the right to do so in a public forum. See Quicken Loans, Inc., 361 NLRB No. 94, slip op. at 1 n.1 (Nov. 3, 2014). Accordingly, we determined that the following rules were unlawfully overbroad because they reasonably would be read to require employees to refrain from criticizing the employer in public:
With regard to these examples, we recognize that the Act does not protect employee conduct aimed at disparaging an employer’s product, as opposed to conduct critical of an employer’s labor policies or working conditions. These rules, however, contained insufficient context or examples to indicate that they were aimed only at unprotected conduct.
Lawful Rules Regulating Employee Conduct towards the Employer
In contrast, when an employer’s handbook simply requires employees to be respectful to customers, competitors, and the like, but does not mention the company or its management, employees reasonably would not believe that such a rule prohibits Section 7-protected criticism of the company. The following rules, which we have found lawful, are illustrative:
Similarly, rules requiring employees to cooperate with each other and the employer in the performance of their work also usually do not implicate Section 7 rights. See Copper River of Boiling Springs, LLC, 360 NLRB No. 60, slip op. at 1 (Feb. 28, 2014). Thus, we found the following rule was lawful because employees would reasonably understand that it is stating the employer’s legitimate expectation that employees work together in an atmosphere of civility, and that it is not prohibiting Section 7 activity:
And we concluded that the following rule was lawful, because employees would reasonably interpret it to apply to employer investigations of workplace misconduct rather than investigations of unfair labor practices or preparations for arbitration, when read in context with other provisions:
As previously discussed, the Board has made clear that it will not read rules in isolation. Even when a rule includes phrases or words that, alone, reasonably would be interpreted to ban protected criticism of the employer, if the context makes plain that only serious misconduct is banned, the rule will be found lawful. See Tradesmen International, 338 NLRB 460, 460-62 (2002). For instance, we found the following rule lawful based on a contextual analysis:
Although a ban on being “disrespectful” to management, by itself, would ordinarily be found to unlawfully chill Section 7 criticism of the employer, the term here is contained in a larger provision that is clearly focused on serious misconduct, like insubordination, threats, and assault. Viewed in that context, we concluded that employees would not reasonably believe this rule to ban protected criticism.
C. Using Private Social Media Accounts for Business Purposes
Private social media (also sometime referred to as intranet accounts) may be useful to create a social network that is accessible only employees or a limited group of people. Such private accounts are subject to the same Section 7 protections as more public sites like Facebook and Twitter.
Private social media sites may include blogs in which employees discuss employment matters between themselves. Employees should be restricted from using such blogs as representatives of the employer, unless the employer specifically authorizes such employees to speak for the company. A good Social Media policy will contain such restrictions. Such restrictions are generally lawful as they protect an employer’s product or services. The disparagement of an employer’s product or services is generally not considered protected concerted activity. However, discussions on a blog between employees of the decisions of their employer or the performance of their supervisors would likely be protected concerted activity.
In addition to custom created sites, there are several commercial sites that employers may use for private social media sites such as: Yammer, Bitrix24, Chatter.com and WordPress to limit the participants on the social media site. It is beyond the scope of this article to discuss the advantages, disadvantages and limitations of such sites.
When creating a private social media account, employers (and their attorneys) should keep two practical and common sense things in mind:
There are a growing number of cases where employers have had to resort to litigation to obtain passwords and access to their own private social media sites.
D. Using Social Media in Hiring Decisions.
Federal, state, and local anti-discrimination laws prevent employment decisions based on protected status. Protected status information -such as that gleaned from social media postings-may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information. 
In the hiring context, it is generally impermissible for an employer to ask an applicant questions about a protected status. If decision makers (hiring managers) have access to social media sites, they will likely be exposed to impermissible information.
If social media is to be checked, the best practice is to shield the decision makers from the use of social media sites and further restrict the non-decision makers, who may check the sites, to report only public information to the decision makers. It is better to have a non-decision maker familiar with protected statuses (HR perhaps) do so and report only the public information on the social media site to the decision makers.
In addition, several states prohibit an employer from requesting an applicant to provide his or her social media passwords. Asking for passwords, where it may be permitted, unnecessarily opens employers up to challenges of hiring decisions on the basis of discrimination because it often will present the employer with protected status information about which they are prohibited from asking in an interview.
In 2014 the EEOC estimated that 77% of companies surveyed reported they had used social media in 2013 to recruit candidates. Finally, if social media is used to advertise a position, remember that social media postings are “advertisements” that must include the appropriate equal employment opportunity (EEO) and/or affirmative action (AA) tagline. Further, the postings must be retained like all other hiring documents as required by law (or longer if the employer’s policy has a longer duration period).
E. Best Practices for Creating and Updating Social Media Policies.
The starting place for creating or updating a lawful Social Media policy is to make use of the social media policy language which has been approved by the NLRB and adapt the language to the particular circumstances and requirements of the employer. In addition, policies should be reviewed by knowledgeable counsel. Guidance from the NLRB should be reviewed and compared to the proposed policies. Even with the perfectly crafted policy, the employer must implement the policy in accordance with the law. an unfair labor practice can result from the employer implementing the policy and imposing discipline beyond the policy. Finally, a Social Media policy should mesh with the employer’s other policies, particularly the company’s Ethics, Information, Anti-discrimination and Harassment Prevention Policy, and Offensive Behavior (Bullying) Policy.
The following sample policy is a policy which was approved by the General Counsel for the NLRB in its third Memorandum on Social Media Guidance:
SAMPLE SOCIAL MEDIA POLICY (Previously approved by NLRB General Counsel)
Effective Date: _______________________
We understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.
This policy applies to all employees who work for the Company.
In the rapidly expanding world of electronic communication, social media can mean many things. Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with the Company, as well as any other form of electronic communication.
The same principles and guidelines found in the Company’s policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow employees or otherwise adversely affects members, customers, suppliers, people who work on behalf of the Company or the Company’s legitimate business interests may result in disciplinary action up to and including termination.
Carefully read these guidelines, the Company’s Ethics Policy, Information Policy, anti-Discrimination and Harassment Prevention Policy and Offensive Behavior (Bullying) Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.
Always be fair and courteous to fellow employees, customers, members, suppliers or people who work on behalf of the Company. Also, keep in mind that you are more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, employees or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.
Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered.
Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about the Company, fellow employees, members, customers, suppliers, people working on behalf of the Company or competitors.
Post only appropriate and respectful content
Using social media at work
Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company’s Electronic Device Policy.
Do not use Company email addresses to register on social networks, blogs or other online tools utilized for personal use.
Retaliation is prohibited
The Company prohibits taking negative action against any employee for reporting a possible deviation from this policy or for cooperating in an investigation. Any employee who retaliates against another employee for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.
Employees should not speak to the media on the Company’s behalf without contacting Management. All media inquiries should be directed to them.
For more information
If you have questions or need further guidance, please contact your supervisor or Management.
Donald C. Erickson, Senior Counsel, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, Minnesota.
 29 U.S.C. § 151-169
 29 U.S.C. Sec. 157
 Butler Med. Transp., LLC, Case No. 5-CA-97811, 2013 WL 4761153.
 281 N.L.R.B. 882 (1986), af’fd. sub. nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987) cert. denied, 487 U.S. 1205 (1988)
 Id. at 885.
 See, e.g., Republic Aviation Corp. v. NLRB, 324 U.S. 793 @ 797-98 (1945)
 See, e.g., Williamette Indus. Inc., 306 N.L.R.B. 1010 @ 1017 (1992)
 343 N.L.R.B. 646 (2004)
 A link to the NLRB summary of its actions regarding social media may be found at http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media
 April 2, 2015
 A link to the memoranda may be found at http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media
 A link to the March 18, 2015 Memorandum may be found at: http://www.managementmemo.com/files/2015/03/GC-15_04-Report-of-the-General-Counsel-Concerning-Employer-Rules.pdf
 As these are general rules and not specific legal advice relating to the specific terms of a social media policy, the practitioner should review the memoranda of the General Counsel and compare them to the proposes social media policies before determining whether a rule is lawful or not.
 Non-union employers may be surprised to find that under Section 7, management and its decisions are not entitled to the same level of respect on social media as discussion about other employees, customers and competitors.
 See, http://www.eeoc.gov/eeoc/newsroom/release/3-12-14.cfm
 See, http://www.eeoc.gov/eeoc/newsroom/release/3-12-14.cfm