In the past few months, we have 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 and for disciplining a unionized employee for posting critical remarks on Twitter, but it has refused to prosecute employers for discipline related to employees' Facebook activity when it was just an individual "gripe." Apparently recognizing that these rulings could cause confusion for human resources professionals and other practitioners, NLRB General Counsel Lafe Solomon recently published a summary of 14 key cases involving social media, with the goal of providing guidance on this hot-button issue (click here to read the full summary).
In the report, the NLRB General Counsel summarized nine cases that involved protected concerted activity via online communication. Remember, federal labor law gives employees, union or non-union, the right to engage in protected concerted activity. Generally, two or more employees acting together to address a collective employee concern about terms and conditions of employment is considered protected concerted activity. A single employee acting on behalf of others, or who is initiating, inducing or preparing for group action, or who has discussed the matter with co-workers, can also be engaged in protected concerted activity. On the other hand, comments made solely by and on behalf of the employee himself or herself that are related to his or her employment but do not arise out of, or call for, concerted activity by other employees, are not concerted.
In four of the nine cases, the NLRB determined that the employees' Facebook use was protected concerted activity, while in five of those nine cases, the employees' Facebook or Twitter use was not protected. In one case, for example, a nonprofit employer discharged employees who had answered a co-worker's Facebook post (made in preparation for a meeting with a management official) with comments in a debate about their job performance, and the comments (which included curse words) were directly related to staffing and workload issues. The NLRB said this was a "textbook example of concerted activity," since it was a discussion initiated by one employee who was appealing to coworkers for assistance. Even though the messages used curse words, they did not lose protection for merely being insulting: "Although there was swearing and/or sarcasm in a few of the Facebook posts, the conversation was objectively quite innocuous."
Even when it is laced with profanity and sarcasm, the NLRB often finds that an employee's social media activity is protected under the National Labor Relations Act (Act). For example, the NLRB General Counsel's report summarized a case in which an employee did not lose the Act's protection when she described her supervisor as a "scumbag" and other derogatory terms on her Facebook page, which drew supportive comments from coworkers. The NLRB commented that it "has found more egregious name-calling protected" and found significant that the employee's comments were motivated by the supervisor's unlawful failure to honor her request for the presence of a union representative during an investigatory interview, as well as an unlawful threat of discipline.
Finally, the NLRB General Counsel discussed several cases in which employers had implemented unlawfully broad social media policies restricting how employees could communicate online. For example, the NLRB General Counsel discussed a case that found the employer violated the act by having a "social networking" policy that restricted employees from talking about company business on their personal blogs, or posting pictures or comments about the company that could be considered "inappropriate." In the NLRB's view, these restrictions were unlawful because they "were broad terms that would commonly apply to protected discussion about, or criticism of, the employer's labor policies or treatment of employees" and "would reasonably be interpreted as prohibiting the employees' right to discuss wages and other terms and conditions of employment, as well as to communicate through the posting of pictures."
The NLRB General Counsel's summary helps provide further clarification to what the NLRB considers to be, and not to be, protected concerted activity. When contemplating taking disciplinary action against an employee based on activity related to social media, employers must be aware of the law's protections to employees who engage in protected concerted activity. As discerning what is, and is not, protected concerted activity is often difficult, employers are encouraged to call counsel before issuing any discipline to an employee based on conduct related to social media.