Recently, we alerted you to the National Labor Relations Board's (NLRB) increased focus on employees' right to use social media to comment on and discuss their working conditions. The NLRB has prosecuted employers for discharging a unionized employee who posted a "negative remark" about her boss on Facebook in one case and for disciplining a unionized employee for posting critical remarks on Twitter in another. As we predicted, the NLRB has continued to pursue this position and recently announced the resolution of another case involving employee Facebook postings.
In this case, a former employee who was not represented by a union (unlike those in the other Facebook and Twitter cases) alleged her employer discharged her in retaliation for posting comments about the company and about possible state labor code violations on her Facebook page, which drew comments from others. After investigating the former employee's charge, the NLRB announced it reached a settlement between the parties, which typically occurs when the NLRB informs the employer that it intends to issue a complaint on the allegations and pursue an administrative lawsuit against the employer. This settlement requires that the employer compensate the employee for lost earnings and post a notice for 60 days stating that employees have the right to post comments about terms and conditions of employment on their social media pages, and that they will not be discharged or otherwise disciplined for doing so.
This case is another clear indication of the NLRB's position that employees are entitled under federal labor law to discuss their working conditions, even critically, on social media. Indeed, the Regional Director of the NLRB Region in which this case was pending stated that he was "pleased that ... the employer has recognized the rights of its employees to use social networking sites to comment about their working conditions."
Section 7 of the National Labor Relations Act (NLRA) gives employees the right to engage in protected concerted activity. Generally, two or more employees acting together to address a collective employee concern is considered protected concerted activity. However, a single employee acting on behalf of others, or who is initiating group action, or who has discussed the matter with co-workers, can also be engaged in protected concerted activity.
As this case shows, employers need to be aware of the NLRA's protections to employees for engaging in protected concerted activity when contemplating discharging or taking disciplinary action against an employee. Employers should also review their social media policies to ensure they are not overly broad. Remember, the NLRA applies to both union and non-union employers, so even non-union employees have the right to engage in protected concerted activity.