Savvy nonprofits have long understood that the employment-at-will doctrine – namely, that the employment relationship may be terminated by either party for any reason – while still very powerful, has many fissures that work to limit the grounds for which employees may be disciplined or discharged. These fissures include federal and state fair employment statutes (e.g., Title VII, ADAAA, ADEA), employment torts (e.g., wrongful discharge), and implied contracts (e.g., some employee handbooks or policies). Because nonprofits are typically not unionized, nonprofits have also typically overlooked the National Labor Relations Act as a possible limitation on their right to discipline or terminate at will. But recently, nonprofits seeking to enforce work rules or to restrain employee criticism of them or their policies in social media such as Facebook and Twitter have received important reminders of the need to consider the provisions of the NLRA – even if the nonprofit is not unionized.
The NLRA provides workers with a protected right to engage in concerted (or group) activity for purposes of collective bargaining or “other mutual aid or protection.” This right includes communications with one another about the terms and conditions of their employment. Critically, the NLRA's protection applies to nonsupervisory employees regardless of whether the employees belong to a union. Disputing conditions of employment is typically activity protected by the NLRA, but an employee engaged in protected concerted activity can lose the protection of the NLRA if his or her conduct is “opprobrious.” In other words, while nonprofits are entitled to maintain order and respect in the workplace, employees engaged in concerted activity are permitted some leeway for impulsive and intemperate behavior. When balancing those rights and deciding whether an employee’s otherwise protected complaint tips the balance and loses protection, the National Labor Relations Board – the federal agency charged with enforcing the NLRA – weighs four factors: (1) the place where the discussion occurred; (2) its subject matter; (3) the nature of the employee’s conduct; and (4) whether the employee’s conduct was provoked in any way by an employer’s unfair labor practice. Atl. Steel Co., 245 NLRB 814, 816 (1979).
One reminder that the NLRA can protect even nonunion employees from discipline for offensive conduct came last summer. In Plaza Auto Center, Inc., Case No. 28-CA-22256 (Aug. 2010), an employee was called into a meeting with the company’s owner after making several negative comments about various employment conditions, including compensation, in employee group meetings. The owner told him that he should not discuss pay and that if he did not trust the company, the employee should work elsewhere. The employee became upset and responded by calling the owner a “f***ing crook” and “an a**hole,” adding that the owner was stupid, unliked and talked about behind his back. The employee was fired.
The NLRB concluded his firing was illegal. Applying the four factor test described above, the NLRB found factors 1, 2 and 4 favored the employee, and that the employee’s conduct (factor 3) “not so opprobrious” as to render his conduct unprotected because it was provoked by the employer’s failure to answer his questions and the employer’s suggestion the employee could work somewhere else. See also Kiewit Power Constructors Co. v. NLRB, No. 10-1289 (D.C. Cir. Aug. 3, 2011) (comments by employees in response to warnings about excessive break time that things would “get ugly” if they were disciplined and that the supervisor should bring his boxing gloves were not physical threats but protected, though intemperate, comments).
Another reminder to nonprofits of the vitality of the NLRA came in American Medical Response – the notorious Facebook case. That case involved a complaint filed by the NLRB against AMR, an ambulance service, in October 2010. The complaint alleged that AMR unlawfully terminated an employee for posting negative remarks about her boss on Facebook and that AMR’s Internet use policy overbroadly prohibited employees from making negative comments about the company. Ultimately, the case resolved with AMR agreeing to revise its rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co workers and others while not at work, and agreeing that it would not discipline or discharge employees for engaging in such discussions. AMR, as it turns out, is one of over 100 such cases recently filed by the NLRB.
Cases such as AMR have led to widespread review of social media policies by nonprofits and other employers grappling with understanding what their policies could lawfully regulate, as well as the types of employee commentary or criticism protected from censure under the NLRA. Three recent advice memoranda from the NLRB’s Office of General Counsel provide some additional guidance in this area. Unlike the situation in AMR, in each of the three opinions, the NLRB found that employees posting job-related complaints in social media were not engaged in concerted, protected activity under the NLRA.
In the first opinion, JT’s Porch Saloon and Eatery, Ltd. (July 7, 2011), the employee, a bartender, complained on Facebook to his stepsister that he hadn’t had a raise in five years and that he was doing "waitress" work without tips. He also called the customers rednecks and stated that he hoped they "choked on glass as they drove home drunk." According to the memorandum, although the posting addressed the terms and conditions of employment, the employee’s discharge was not illegal because the employee did not discuss the posting with his co-workers and there was no evidence that any co-workers responded to it. In short, the evidence established that the employee was simply responding to a question from his stepsister, a non employee.
In Wal-Mart (July 19, 2011), the employee was discharged after posting profane comments on Facebook critical of store management. As in JT’s Porch Saloon and Eatery, Ltd., the NLRB concluded that the employee’s Facebook postings were merely an expression of individual gripes as opposed to protected concerted activity. In this case, at least two co-workers responded; however, their messages reflected their perception that the posting was individual and not group activity.
Finally, in Martin House (July 19, 2011), an employee, a recovery specialist in a residential facility for homeless individuals, many of whom suffer from mental illness and substance abuse, posted demeaning comments concerning her employer’s clientele. The employee was not a “Facebook friend” with any of her co-workers but, unfortunately for her, was a Facebook friend of one of her employer’s former clients, who saw the postings and reported them to her employer. The NLRB found her discharge lawful because there was no evidence of protected concerted activity: the comments did not mention any terms or conditions of employment, the posting was not discussed with any co-workers, and the comments were not for the purpose of inducing group activity or an outgrowth of collective concerns of the employee or her co-workers.
What do these cases mean?
Although in each of the three opinions the employee's comments were found to be individual gripes and not protected concerted activity, the matters nevertheless highlight the need for a careful analysis of the potential difficulties in sustaining the discipline or discharge of an employee because of workplace complaints or his or her postings on Facebook, Twitter or other social media. Indeed, the dispositive evidence in the three opinions, from the employer’s point of view, is to some degree serendipitous. Thus, had evidence surfaced that the employee in JT’s Porch Saloon and Eatery, Ltd. discussed his concerns with co-workers, or had one or more of them seen and responded to his posting agreeably, a different result may have been obtained. Likewise, in Wal-Mart, had the co-workers shared similar concerns about the object of the employee’s gripe, the activity could have been found to be concerted and protected.
Because the nonprofit will likely not know whether coworkers joined or otherwise commented on any posting, the opinions also highlight the difficulty of knowing whether social media postings may be concerted protected activity under the NLRA until it is too late. Thus, although the recent opinion letters can be read to be consistent with the traditional view that nonprofits, like all other employers, are entitled to maintain order in the workplace, the factual specificity of the opinions actually highlights the limitations on that right and the need to proceed cautiously when considering whether to discipline an employee because of his or her comments, intemperate or otherwise, in a blog, tweet or other social media posting.
More generally, the spate of cases filed by the NLRB and its recent opinion letters demonstrate the need for nonprofits: (1) to review their policies to ensure that they are not overbroad and constitute potential unfair labor practices by themselves (e.g., a written policy stating that compensation is private and may not be discussed with co-workers); and (2) to review proposed disciplinary actions to avoid potential claims under the NLRA and other federal and state employment laws. While any disciplinary decision is obviously highly fact-specific, a few general reminders to minimize or avoid potential liability when considering whether to and the extent of any discipline are as follows:
- What will be the articulated reason for the action? Remember, if the explanation changes, the chances of employee victory in court are increased dramatically.
- Do the grounds for discipline accord with the employer’s policies?
- Does the action violate a public policy or appear to be retaliatory (due to timing or other reasons)?
- Was an adequate investigation of the triggering event done? Have pertinent records been reviewed? Is the articulated reason documented in warnings and performance appraisals? How strong is the supporting evidence?
- Was the employee given an opportunity to refute the contention? Does the employee have a sympathetic defense? Are there any circumstances a judge or jury might consider as excusing the employee's misconduct?
- What do comparisons to other similar infractions within the organization reveal? If they were handled differently, what is the justification for the difference in treatment?
The law in this area is evolving. For now, it is probably safe to say that if the employee could not be disciplined for a comment made around the office water cooler, it could be viewed as folly to discipline him or her simply for saying it on Facebook or some other social media. But definitely stay tuned as the relevant law appears to be an ever-developing, moving target.