Protected Activity or Disloyalty

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Snell & WilmerIn a recent case, the National Labor Relations Board (NLRB) Division of Advice addressed the question of whether a grocery store employee posting, on his personal Facebook and Instagram accounts, constituted protected activity for which  the employee could not be disciplined without violating the NLRA (National Labor Relations Act – the Act). Because this issue comes up with frequency, employers should be alerted to the analysis that the NLRB applies in determining whether any discipline against employees, arising from social media postings, constitutes an unfair labor practice.

In essence, the employee identified the grocery store employer and criticized the customers shopping behavior because they spent  too much time “browsing around” instead of “get what you need and get yourselves home.” In the employee’s view the customers’  behavior was inconsiderate of the employees, as the time spent unnecessarily  “browsing around” “put us (employees) at risk”  during the COVID-19 pandemic.

Even though the posting was “liked” by three other employees,  the employer terminated the posting employee. The discipline was based on the employee’s  failure to make clear that he was speaking on his own behalf and not the employer, thereby violating the employer’s social media policy. In addition, in the employer’s view, the statements in the posting were insulting to customers, thereby violating the requirement in the employer’s handbook that employees “treat all customers with integrity”.

The employee filed a Charge with the NLRB, alleging that he had been terminated for engaging in concerted/protected activity in violation of the Act.

The  NLRB Region submitted the issue to the Division of Advice. The Division applied the Jefferson Standard analysis.

Under this analysis, the NLRB considers whether the employee communications were so “disloyal, reckless or maliciously untrue that their intent was to disparage the employer’s product or service rather than to appeal for support in a labor dispute.” The Division concluded that, under the Jefferson Standard, even if the employee posting constituted concerted activity, it lost its protection because it  disparaged the employer by insulting customers without reference to a labor dispute. Accordingly the Charge should be dismissed.

Employers should consider the above described NLRB analysis when determining whether employee social media communications should result in disciplinary action.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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