NLRB: Use of Social Media Can Be Protected Employee Activity

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The rise of social media has led to the application of old law to new forms of communication. For instance, an effort by the National Labor Relations Board to educate workers on their right to engage in protected concerted activity has left some employers feeling that the NLRB went too far in supporting employees’ rights – particularly their right to post disparaging work-related comments on social media forums without reprisal.

Section 7 of the National Labor Relations Act (NLRA) protects all private-sector employees’ absolute right to engage in protected concerted activity, including the right to discuss among themselves their wages, hours, benefits and other terms and conditions of their employment. Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others. It also requires that the improvement sought benefit more than just the employee taking action, so as to distinguish protected concerted activity from mere individual complaints.

Last year, the NLRB launched a website seeking to educate workers on their right to engage in protected concerted activity. The site provides several examples of cases in which employers violated an employee’s right to engage in protected concerted activity over the Internet. For example, in one case the NLRB issued a complaint against an employer that terminated an employee who criticized her supervisor on Facebook. The Board also found that the employer’s Internet policy, which prohibited employees from making negative statements about the company or supervisors, interfered with the right to engage in concerted activity.

The NLRB has in fact ruled in workers’ favor in a number of social media cases. For example, in Hispanics United of Buffalo, the NLRB considered a case in which an employer discharged five employees because of their Facebook posts. In that case, an employee went on Facebook to solicit her coworkers’ thoughts on work-related criticism she received from a fellow employee. In response, four coworkers weighed in about working conditions, work load and staffing issues at the company. All of the employees’ posts were made off-duty on the employees’ personal computers. The employer terminated all five employees, claiming that their comments constituted harassment of the employee mentioned in the initial post.

An NLRB administrative law judge reviewed the case and found that the employees had been unlawfully discharged. The ALJ found that the NLRA protects employees in “circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management,” even if that action takes place online. Since the employees were discussing the terms and conditions of their employment, the discussion was protected concerted activity within the meaning of Section 7 of the NLRA.

While cases like Hispanics United of Buffalo have served as a rallying cry for employers on the NLRB’s perceived overreaching in support of workers, a recent report on NLRB social and general media cases reveals that the NLRB actually sided with employers in slightly more than half the time by finding that employees’ statements on Facebook or Twitter did not constitute “protected concerted activity” under the NLRA. For example, in Karl Knauz Motors, Inc., the NLRB found that an employee was lawfully terminated for his Facebook postings about an accident that took place at a car dealership owned by his employer. The NLRB found that these comments were not protected because they were not related to the terms and conditions of his employment.

Similarly, in another case brought before the Board, an employee who had just been reprimanded by her supervisor posted a Facebook status that consisted of an expletive and the name of the company that employed her. One of her coworkers “liked” that status. Half an hour later the same employee posted a comment expressing her belief that the company did not value its employees. None of the employee’s coworkers responded to that posting. The company terminated the employee for her postings.

On review, the NLRB upheld the employee’s termination, finding that the posts were merely the expression of a personal gripe. The NLRB’s Associate General Counsel summarized the Board’s reasoning by stating, “The Charging Party had no particular audience in mind when she made that post, the post contained no language suggesting that she sought to initiate or induce coworkers to engage in group action, and the post did not grow out of a prior discussion about terms and conditions of employment with her coworkers. Moreover, there is no evidence that she was seeking to induce or prepare for group action or to solicit group support for her individual complaint. Although one of her coworkers offered her sympathy and indicated some general dissatisfaction with her job, she did not engage in any extended discussion with the Charging Party over working conditions or indicate any interest in taking action with the charging party.”

Despite the uproar over the NLRB’s application of “protected concerted activities” to social media, this does not represent a shift from the NLRB’s previous decisions. It merely applies existing policy to a new set of facts brought about by technological changes in how workers communicate. As before, employers may set limits on employee’s social media activities as long as they do not impinge on the employees’ protected concerted activities.