Recently, 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 that resulted in additional similar comments being posted by other employees, and for disciplining a unionized employee for posting on Twitter critical remarks about the employer's relationship with the employee's union. In three recent cases, however, the NLRB's Division of Advice recommended dismissing unfair labor practice charges related to employees' Facebook activity because they were individual "gripes" rather than concerted complaints.
In the first case (JT's Porch Saloon), a restaurant and bar discharged a bartender after he posted comments in a Facebook conversation in which he stated he had gone five years without a raise, did the work of waitresses but without tips, and said he hoped the company's "redneck" customers would "choke on glass as they drove home drunk." None of his co-workers participated in the Facebook conversation. (Ironically, however, the employer informed him that he was discharged via a Facebook message.)
In the second case (Wal-Mart), the company suspended an employee after he posted several derogatory and insulting comments on his Facebook page, including: (1) "Wuck Falmart! I swear if this tyranny doesn't end in this store they are about to get a wakeup call because lots are about to quit!" (2) Calling his manager a "puta" and claiming her criticism of his work was "retarded." (3) Stating that "if it don't [sic] change walmart can kiss my royal white ass." Co-workers responded to his posts, and one commented that he should "hang in there."
In the third case (Martin House), a nonprofit residential facility for the homeless discharged an employee for posting inappropriate comments about residents. While at work and on the clock, the employee made comments in a Facebook discussion that it was "spooky" working nights at a "mental institution," that residents hear "voices" and that they "just pop meds." None of the participants in the Facebook conversation were co-workers, and none of the employee's co-workers were her Facebook "friends."
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 are not concerted.
In all three of these cases, the Division of Advice found that the misconduct for which the employees were terminated did not constitute protected concerted activity, but were more appropriately considered personal "gripes." In JT's Porch Saloon, the employee was expressing personal frustration about work. In Wal-Mart, the employee was complaining about his own relationship with management, and the comments of his co-workers were purely sympathetic but themselves did not agree with is relationship with management or raise any concerns about employees' working conditions. In Martin House, the employee was expressing personal opinions about the employer's customers to non-employees.
The Division of Advice's recent opinions help provide further clarification to what the Board considers to be, and not to be, protected concerted activity. When contemplating taking disciplinary action against an employee based upon social media postings, employers must be aware of the law's protections to employees who engage in protected concerted activity. However, because discerning what is, and is not, protected concerted activity is often difficult, employers are encouraged to call counsel prior to issuing any discipline to an employee based upon a social media posting.