The National Labor Relations Board has found that another employer (a non-union employer) violated its employees’ protected concerted activity rights under the National Labor Relations Act (NLRA) when it disciplined and fired them for certain social media activity. Our Labor Group provides an extensive analysis of this decision in Triple Play Sports Bar and Grille, 361 NLRB No. 31 (2014).
The analysis of the issues in Triple Play, you will see, is quite fact intensive and requires some thought in applying the applicable legal principles – and that is just addressing the NLRA issues. When companies are faced with adverse social media activity or campaigns, whether it be by employees, customers, bloggers, etc., they frequently are unprepared to take the appropriate steps to investigate, or to weigh the legal, business and other risks in deciding what actions, if any, to take. The situation in Triple Play, and other activity in social media, provide good reason for companies to be better prepared and to have a plan. Many companies may already have a crisis management plan or a communications policy, but those plans and policies need to reflect the nuances of social media and other factors, such as who is engaging in the activity and what information is being communicated.
Here are some basic questions/issues that should be considered in any plan, which are by no means exhaustive:
- Should we have resources proactively monitoring social media activity and communications that potentially affect the company, and what limitations should there be on that monitoring?
- Who in the company should receive initial reports of a potential problem?
- Who should be involved in the investigation? Do we need third-party forensic expertise?
- Do we have insurance coverage for the particular incident?
- How will the persons involved in the activity – employees, customers, bloggers, etc. – affect the process from a legal, business or other perspective?
- How did we learn about, get access to the activity – was it permissible under the Stored Communications Act (SCA), the Electronic Communications Privacy Act (ECPA), state laws concerning social media passwords?
- Is the information being communicated accurately?
- Are we acting consistent with our own privacy and other policies in connection with the investigation?
- Is the activity/communication protected – protections may exist under First Amendment, the NLRA, whistleblowing, or other sources?
- Do we need to respond? How have we responded in the past to similar situations? Will a response only make things worse? If a response is warranted, what should it be?
- What can we learn from this incident in order to avoid incidents like this in the future?
A little planning can go a long way toward minimizing mistakes and getting better results when companies face urgent situations that require immediate action.