#No Filter: Regulating an Employer’s Social Media Postings

In this special edition of #No Filter, we’ll look at a recent May 20, 2022 decision from the Third Circuit Court of Appeals impacting the limits of allowed speech on social media. This time, however, we examine attempts to regulate a employer speech on social media rather than the typical situation involving attempts to regulate an employee’s speech.

FDRLST Media, LLC v. National Labor Relations Board

The employer operates The Federalist, a right-wing Internet magazine that publishes commentary on current cultural, political, and religious issues, including labor matters. There were a total of seven employees, six of whom were editors and editors of the online publication. On June 6, 2019, following a report that staff at a left-leaning digital media company quit their jobs during collective bargaining, the employer’s chief executive posted a tweet on his personal Twitter account which read: “FYI @fdrlst first one of you trying to unionize I swear I will send you back to the salt mine.

The next day, a Massachusetts resident unrelated to the employer filed an unfair labor practice lawsuit against the employer, alleging the tweet “threatened employees with retaliation and implicitly threatened employees with losing their jobs if they trained. or supported a trade union”. At least one employee saw the tweet, but there is no evidence that employees expressed concern about its message. Quite the contrary. Two employees submitted affidavits saying they viewed the tweet as a humorous and satirical expression and did not perceive it as a threat to protected activity in the workplace. The employer’s executive submitted an affidavit that he intended the tweet to be satire, expressing his personal view on a contemporary topic of general concern.

Section 8(a)(1) of the National Labor Relations Act (NLRA) prohibits employers from engaging in practices that “interfere with, restrict or coerce employees in the exercise” of their protected rights to organise, bargain collectively or engage in other trade union activity. An employer is not prohibited from communicating its views on unions, even anti-union ones, to its employees, but it cannot threaten employees with reprisals or promise them benefits related to unionization. But what constitutes a prohibited threat? To qualify as such, an employer’s statement must warn of adverse consequences in a way that “would tend to compel a reasonable employee” not to exercise their labor rights.

The National Labor Relations Board (NLRB) enforces the NLRA and has filed a complaint against the employer. At a hearing on the merits before an administrative law judge, the NLRB’s general counsel called no witnesses, dismissed the idea that the tweet would be understood as a joke, and argued that a reasonable reader could only interpret the tweet as a threat. against the unionization of workers. The administrative law judge held that “a reasonable interpretation of the phrase meant that working conditions would worsen or benefits would be compromised if employees attempted to unionize” and, therefore, the tweet violated the NLRA. The employer appealed the decision to the NLRB, which upheld the decision, stating that the employer’s intent and the employees’ subjective perception were irrelevant to its investigation. The employer filed a petition for review with the Court of Appeals for the Third Circuit and the NLRB sought enforcement of its order against the employer.

The Third Circuit ruled in favor of the employer and denied the NLRB’s request for enforcement. In its ruling, the Third Circuit noted that an employer’s conduct must be considered “in light of all of the existing circumstances.” The Court of Appeal noted that “[c]Text is an important part of language, and this is especially true when, as in this case, pure speech is involved.

The context of the speech in this case was of crucial importance. For example, the Court noted that six of the employer’s seven employees were editors and publishers of the publication; “the image evoked – of writers tapping away at laptops in dimly lit mine shafts next to salt deposits and workers swinging pickaxes – is as bizarre as it is comical.” The court went on to note that there was “no strike history, no evidence of antagonism” and that there was “no evidence that any employee of FDRLST Media perceived [the] tweet as a threat[.]“In fact, the original charge was filed by an unrelated third party. Although an employee’s subjective impressions are not determinative, they are not irrelevant.

The court also analyzed the satirical aspect of the tweet:

“Employee subjective impressions are particularly useful when, as here, the employer claims that his statement was made in jest. Humor is subjective. What is fun for a fisherman may be lost for a farmer. A joke about New England winters is unlikely to cause laughter in Alaska… Excluding context and considering a statement in isolation, as the Council did here, could lead to the conclusion that “breaking a leg” is always a threat. But when expressed to an actor, singer, dancer, or athlete, this phrase can reasonably be interpreted to mean only “good luck.”

The employer’s business involved commenting on “contemporary newsworthy and controversial topics…” Here, the senior executive used his personal Twitter account to promote the magazine comment, and there is no evidence that he used it the same way to communicate with employees or that they were required to follow the directive through his Twitter account. In the end, the Third Circuit observed that “the council devoted its resources to investigating an online media company with seven employees because of a facetious and sarcastic tweet by the company’s chief executive. Because the Council lost the forest for the trees by failing to consider the tweet in context, it misinterpreted a jocular remark as a genuine threat. Accordingly, the Third Circuit denied the NLRB’s enforcement request and set aside its order against the employer.

Practical advice for employers

These cases illustrate how difficult, nuanced, and contextually important attempts to regulate discourse on social media can be. Employers considering taking action on social media misconduct outside of work should ask themselves a few basic questions before taking action:

  1. Do I have a copy of the tweet or post? Social media is user-controlled content and can be easily removed when an employee learns they are under investigation. Preserving this evidence before acting is essential to any full investigation.
  2. Is the job about working conditions or wages? The NLRA prohibits employers from taking action against employees who act together to improve their wages, hours and/or conditions of employment.
  3. Would the message be considered harassment if said face to face? Applying an employer’s harassment and discrimination policy to offensive behavior requires evaluating the content and context of the speech. Continually assessing offensive conduct and taking steps to correct it, regardless of where the conduct occurred, will help ensure consistent application of employer policies and help the respondent avoid subsequent disputes.