The National Labor Relations Board’s Division of Advice concluded in three recent memoranda to NLRB regional offices that in certain circumstances, employees posting complaints about their employment on social media sites may not be engaged in concerted, protected activity, even if the complaints are job-related. In the three cases reviewed by the Division of Advice, employees were fired or disciplined for posting job-related complaints on social media sites. The employees asserted that their employer’s actions violated Section 8(a)(1) of the National Labor Relations Act, which prohibits employers from interfering with, restraining, or coercing an employee’s right to engage in concerted activity for mutual aid or protection.
In each case, the Division of Advice used the same framework for analyzing whether the employee was engaged in concerted activity. In determining whether the comments were concerted activity, the Division of Advice assessed whether the activity was “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” The Division of Advice also analyzed whether the employee was seeking “to initiate or induce or to prepare for group action,” or whether the activities stemmed from “the logical outgrowth of concerns expressed by the employees collectively.” In each case, Associate General Barry J. Kearney concluded that the employees were not engaged in protected concerted activity.
In JT’s Porch Saloon & Eatery, Ltd., an employee was discharged for posting a message on his Facebook page that was critical of the employer’s tipping policy. The posting was made in response to a question from a non-employee. The employee did not discuss his posting with co-workers, nor did his co-workers respond to it. Although the employee had a discussion with a co-worker about the policy months before the posting, the issue was never raised with management. The Division of Advice concluded that the Facebook posting did not involve concerted activity, and recommended that the region dismiss the charge. While the Division of Advice found that the posting addressed terms and conditions of employment, the posting was not an attempt to initiate group action with regard to the policy. Rather, the comment was merely a response to a question from a non-employee, which did not grow out of the employee’s conversation with a co-worker months earlier. JT’s Porch Saloon & Eatery, Ltd., 13–CA–46689.
In Martin House, an employee of a provider of mental health services was discharged for posting inappropriate comments on Facebook referencing the employer’s mentally disabled clients. The employee engaged in a conversation on her Facebook wall with friends who were not co-workers, commenting that it was “spooky” working at night in a mental institution and that she was not sure if a client was hearing voices. The employee was not Facebook friends with any of her co-workers. The Division of Advice found that the employee was not engaged in protected concerted activity, and recommended that the region dismiss the charge. As the employee did not discuss her Facebook posts with any of her fellow employees and none of her fellow employees responded to the posts, the Division of Advice found that the employee was not seeking to induce or prepare for group action, nor was the posting an outgrowth of the employees’ collective concerns. The Division of Advice also ruled that the comments were not related to any terms or conditions of employment. Rather, the employee was merely communicating with her personal friends about what was happening on her shift. Martin House, 34–CA–12950.
In Wal-Mart, an employee was disciplined for posting profane comments on Facebook that were critical of store management. The employee’s comments were limited to his Facebook friends, which were largely comprised of co-workers. Two co-workers briefly responded, and a third co-worker made the remark that the employee should “hang in there.” The Division of Advice found that there was insufficient evidence of concerted activity, and recommended that the region dismiss the charge. The Division of Advice found that the employee’s comments expressed “an individual gripe” rather than a logical outgrowth of prior group activity or an effort to induce co-workers to engage in group action. Wal-Mart, 17–CA–25030.