Question: I am the Human Resources Director for a national retail company with stores throughout the country. A group of employees in one of our stores recently complained to their manager that they did not feel safe leaving the store at night because they felt the neighborhood was too dangerous. The employees asked the manager if we would close the store earlier, before it got dark. Although the company was willing to create a “buddy system” to make the employees feel safer, the manager explained to the employees that the company would not close the store earlier. Upset about the manager’s response, one employee posted on her Facebook page that she was “incredibly stressed out” by the manager’s response and was upset that no one at the company was doing anything about it. One of her co-worker’s then responded that the company’s deceased owner – who was identified in the Facebook post – would be “rolling in her grave.” The manager believes the employees’ conduct was disrespectful and their comments on Facebook reflected negatively on the company. Since the employees are all at-will, she wants to terminate the two employees who wrote the posts and suspend the employees who participated in the discussions. Should we approve this request?

Jeff Toppel: In simpler times, disciplining such tech-savvy employees would not be complicated. However, recent National Labor Relations Board decisions in this area have expanded the potential legal risks for employers. Section 7 of the National Labor Relations Act protects workers’ rights to engage in protected concerted activities in both union and non-union workplaces. The National Labor Relations Board’s continuing focus on protected concerted activity requires employers to take additional care in any action that may interfere with the rights of employees to collectively discuss the terms and conditions of their employment. In a recent decision, the Board affirmed an Administrative Law Judge’s ruling that found a retail clothing company violated the Act when it terminated three employees who had raised collective concerns about their safety when they had to close the store after dark. Design Technology Group d/b/a Bettie Page Clothing, 359 NLRB No. 96 (April 19, 2013). The Board agreed that the employees’ complaints as well as their subsequent posts on Facebook critical of a manager’s response were protected by the Act. Therefore, the Board ordered the employer to reinstate all three employees with back pay covering the period since their termination, among other things.

The Board’s decision in Bettie Page Clothing is just one example of the Board’s efforts to expand the conduct protected by the Act. In addition, the Board continues to find that employees have engaged in protected conduct when they post on social media. In at least three cases, the Board found that off-duty posts on social networks made by employees relating to the terms and condition of their employment were protected by the Act.

Region 28 of the Board (which covers all of Arizona) has been at the forefront of the Board’s initiative to expand employee rights in the non-union workplace. In evaluating the risks that may result from terminating (or taking other adverse action against) an employee, employers in Arizona should consider whether the employee has engaged in any conduct that could implicate the protections of the Act.