Asked and Answered: Nelson Miller

By Jo Mathis
Legal News

A multimedia journalist at the Colorado Springs Gazette recently posted a link to a Los Angeles Times report about the sale of his parent company on his personal Facebook page. A manager ordered him to remove the post, citing the company's social media policy that "prohibits you from posting disparaging or defamatory statements about the company" or "communications that might be misconstrued in a way that could damage the company's goodwill and business reputation, even indirectly." The journalist refused. The National Labor Relations Board has been labeling these sorts of policies an "overly broad" gag order on workers' rights. In six recent cases the agency that investigates unfair labor practices has found provisions of employer social media policies to be unlawful. Thomas M. Cooley Law School Associate Dean Nelson Miller practiced civil litigation for 16 years before joining the Cooley faculty. He has argued cases before the Michigan Supreme Court, Michigan Court of Appeals, and United States Court of Appeals for the Sixth Circuit, and filed amicus and party briefs in the United States Supreme Court. He teaches employee and workplace law, as well as other subjects.

Mathis: Social media has turned "water cooler" conversations into tweets, blogs and Facebook posts with global reach in an instant. Employers are struggling with policies to control these communications. What are they doing wrong?

Miller: The question raises precisely the point: water-cooler conversation can be exactly where employees begin a union or other mutual aid and protection, all protected by Section 7 of the National Labor Relations Act. Employees used to talk shop (including labor issues) over a cup of coffee. Now they communicate much more readily using social media. If social media is the new water cooler, and the National Labor Relations Act protects organizing activity around the water cooler, then the Labor Relations Act must protect organizing activity over social media. What some employers have done wrong is to prohibit or chill all job talk over social media, even protected organizing activity that addresses working conditions. The Board's associate general counsel just released a May 30, 2012 Memorandum (readily available at the NLRB website) distinguishing permissible social-media policies from policies that violate the Act. That Memorandum is the clearest and most comprehensive of three recent NLRB memoranda on social media.

Mathis: Can you tell us about Section 7 of the National Labor Relations Act and why the NLRB specifically cited it in their 24-page memo?

Miller: The Act's Section 7 contains critical protections. Some employers may think that they have no problem with the Act because they have no union. Think again. The Act's Section 7 protects organizing activity for collective bargaining and other mutual aid and protection. Well, some employers may still think that they have no problem with the Act because no union is trying to organize their employees. Think again. Section 7 also protects "self-organizing" activity, meaning, in essence, employees talking among themselves around the water cooler -- or over social media -- not only for collective bargaining but also for "other mutual aid or protection." Some employers may still think that they have no problem if their social-media policies say nothing about prohibiting union talk but just prohibit disparaging the employer. Think again. The National Labor Relations Board, which enforces the Act, holds that discussing working conditions can constitute self-organizing activity. Many employer practices can affect working conditions. Employers whose social-media policies bar all work-related criticism may be barring self-organizing activity.

Mathis: What, if any, role does the First Amendment play in these cases?

Miller: Just about none, because these cases do not involve public employers (public schools, law enforcement, etc.). In general, the First Amendment prohibits government from interfering with free speech and association. The First Amendment does not generally prohibit private employers from restricting free speech. For example, if a private employer requires its employees to speak kindly to customers, then the First Amendment has nothing to say about it. Private employees have no First Amendment right to disparage customers. The First Amendment would, on the other hand, prohibit a public employer like a public-school district from firing a public employee from speaking publicly on matters of public concern (elections, for instance). The National Labor Relations Act is federal statutory law, not First Amendment constitutional law. That distinction is why the National Labor Relations Act reaches private employers. Congress felt that employees should have the right to organize for mutual aid and protection. The Act protects that right.

Mathis: How hard is it for employers, employees and the agencies that regulate their relationships to keep up with the rapid pace of technology?

Miller: Gosh, yes, hard. Employers and their regulators have a hard time keeping up with technology because law has a hard time keeping up with technology. Social media alone raises questions for employment law, privacy law, defamation law, criminal law, family law, intellectual-property law, civil procedure, criminal procedure, and other law areas, all potentially affecting employers. And social media is just one out of several other kinds of advanced or emerging technology also affecting employers and employment law. Consider also biotechnology enabling genetic testing for health screening, information technology enabling searches of formerly private data, and other technology. Brave new world, huh?

Mathis: How do you see this issue evolving in the future?

Miller: One good thing about law: we usually get it right before long. Look back at any not-to-recent development, and you can see how quickly law and society adjust to new circumstances brought about by technological advances. Remember Dr. Death and the legal issues end-of-life technologies raised? Although never perfect, we have a better understanding of legal issues in that area, just as we do in other formerly new areas like genetic testing, discovery of electronic evidence, Internet privacy policies, spamming, search-blocking on the Internet, and so on. Law itself now changes much more swiftly in response to new challenges, due to technological advances in the way that lawyers work. So, my hope is that employers will take a step back from overly restrictive social-media policies, consult labor-law counsel, and reboot with new policies that (as the National Labor Relations Board cautions) allow employees to discuss workplace conditions and pursue organizing activity, expressly acknowledging employee rights under the National Labor Relations Act to do so. Employer practices and, if necessary, regulatory and court rulings, will create sound policies and safe harbors for everyone, employers and employees alike. The Board's associate general counsel has just approved a complete social-media policy attached to the end of counsel's May 30, 2012 Memorandum. Make that policy your template. Whether or not future rulings hold that some of the Memorandum's specific cautions overstep the Act's bounds somewhat, the Memorandum surely has the core of it right, that social media is the new water cooler for organizing activity.

Published: Thu, Jun 28, 2012