• Facebook Fears: Labor Law and Social Networking
  • March 10, 2010 | Authors: John W. Polley; Jennifer Haskin Will; Anne Zorn
  • Law Firm: Faegre & Benson LLP - Minneapolis Office
  • Many employers already know that it is unlawful to spy on employees who are engaged in union organizing activity. As unions start to use social networking sites like Facebook to organize workers, employers must be aware that the same "brick and mortar" rules that have prohibited spying on union activity will also be applied in some circumstances to spying on internet-based union organizing activity.

    "Surveillance" of union organizing activity--or even creating the impression that such surveillance is taking place--has long constituted a violation of section 8(a)(1) of the National Labor Relations Act (NLRA). That section makes it unlawful to interfere with, restrain or coerce an employee with respect to the employee's right to form, join or assist a labor union. The National Labor Relations Board (NLRB) has held for decades that spying on lawful organizational activity interferes with the right to unionize because employees may reasonably fear that the employer may retaliate against the union supporters.

    Unions and workers are now using social media applications such as Facebook to unionize. Just type in the word "unionize" at www.facebook.com and dozens of companies (and other causes) appear: everything from groups called "Unionize Walmart" with more than a thousand "members," to "Unionize Toyota Motor Manufacturing Kentucky" with only three members at this writing. These social media groups are easy to set up, and the sponsoring union or employee (what Facebook calls "the creator") can allow anyone to view who belongs to the group and other information posted on the site. The creator can also restrict access to "members" of the group. ("Members" are persons approved by the creator who have clicked on a box asking to join the group.)

    If a union or some unhappy employees created a website as part of an effort to unionize your company's workers, would it be lawful for you to look at the site to see what employees are griping about?

    Unfortunately, the answer is not entirely clear at this point. There simply is not much case law. But, there is some case law that at least suggests what the answers are likely to be.

    We do know that it is unlawful for an employer to eavesdrop on private conversations between employees and their union representatives. See e.g., NLRB v. Unbelievable, Inc. 71 F.3d 1434 (9th Cir. 1995). And, further, at least one labor case, albeit a case arising under the Railway Labor Act (RLA), Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 872 (9th Cir. 2002), indicates that an employer's unauthorized "eavesdropping" on a employee-maintained website that encouraged the employee's coworkers to seek representation by a more aggressive union is also unlawful.

    In Konop, a pilot for Hawaiian Airlines created and maintained a website on which he posted bulletins that were critical of his employer and the union, because he was unhappy with the contractual concessions that his union was making. He also posted bulletins encouraging other pilots to consider alternative union representation. The information posted on the website was not generally viewable by the public. Instead, Konop required visitors to his website to log in using a user name and password, and he permitted only pilots and other employees of the airline to log in. The terms and conditions of the site, which Konop posted on the site, explicitly prohibited management from viewing the website and prohibited users from disclosing the website's contents to persons who were not also members.

    Apparently undeterred, the employer's vice president asked coworkers of Konop for permission to use the coworkers' names to access Konop's website. The coworkers agreed, and the vice president used their names to access the website some thirty times. The vice president then complained to the officials of the incumbent union about Konop's postings¿including one that said that the president of the company had been accused of fraud. The head of the incumbent union in turn called Konop, telling him that the vice president had accessed his website and that the company was none too pleased about the disparaging comments posted there.

    After learning of the vice president's unauthorized access, Konop filed suit against Hawaiian Airlines on several grounds, including unlawful surveillance under the RLA. The Ninth Circuit applied principles developed under the National Labor Relations Act, and stated that, "There is no dispute that Konop's website publication would ordinarily constitute protected union organizing activity¿." Postponing to trial the issue of whether that protection was lost because of the defamatory content of the postings, the Ninth Circuit then stated:

    Absent a legitimate justification, employers are generally prohibited from engaging in surveillance of union organizing activities. The reason for this general proscription is that employer surveillance "tends to create fear among employees of future reprisal" and, thus, "chills an employee's freedom to exercise" his rights under federal labor law¿We see no principled distinction between the employer's eavesdropping in Unbelievable [cited above] and Hawaiian's access of Konop's secure web site.

    Konop, 302 F.3d at 884.

    Hawaiian Airlines argued that, because there was no evidence that the vice president's access appreciably limited Konop's organizing activity, the access was not unlawful, The Ninth Circuit rejected that argument, explaining that: "[i]t is the tendency to chill protected activities, not the actual chilling of protected activities, that renders eavesdropping and surveillance generally objectionable under federal labor law." Id. (Emphasis in original.)

    It seems likely to us that the NLRB will follow the rule in Konop. Thus, we believe that the NLRB will hold that an employer's unauthorized access of a secure websites promoting its employees' unionization will constitute unlawful surveillance.

    Similarly, we believe that the NLRB will hold that an employer's suggestion to its employees that it has accessed such a web site, even if it has not, violates the National Labor Relations Act because it gives employees the impression that their union activity is being monitored.

    What is less clear is how the NLRB will deal with an employer surfing the web to view a pro-union union website that targets the employer but that is not secure and is generally open to the public. It can be argued that employees who openly join or become members of such a website are no more worried about the employer knowing of their pro-union sympathies than employees who handbill in front of the employer's place of business. Cf. Roadway Package Systems, 302 NLRB 961(1991) ("[W]here, as here, employees are conducting their activities openly on or near company premises, open observation of such activities by an employer is not unlawful."). While employees who publicly join "open" websites are not physically parading "on or near company's premises," such employees are making themselves virtually as visible by joining a website that advertises it purpose by stating the employer's name.

    Although NLRB precedent and existing case law provide some guidance for employers who monitor employee use of social media, these issues are far from settled. Employers who monitor employee use of social media for any reason, whether related to union activity or otherwise, should be mindful of the numerous labor and employment laws that may apply to their conduct.