In a recently-released Advice Memorandum, originally prepared in 2016, the National Labor Relations Board’s General Counsel reminds employers that Facebook posts may constitute concerted activity that is protected under the National Labor Relations Act, even in a non-union setting.
Background Facts: In H&M Construction Co. & Georgia Pacific, LLC, as Joint Employers, in light of the upcoming Veterans Day, Georgia Pacific praised veteran employees on its Facebook page. A non-veteran H&M employee responded to the post by criticizing the company for having a Veterans Day function for its own – but not contractors’ – veteran employees. He had also engaged in a verbal discussion with another H&M employee, in which he expressed his anger about the exclusionary event and the other employee agreed. He was then laid off because of his Facebook posts.
The General Counsel’s Opinion: The General Counsel found that the employee’s Facebook comments were concerted activity for employees’ mutual aid or protection, which is protected activity under the NLRA. As noted by the General Counsel, “Conduct is concerted when it is ‘engaged in with or on the authority of other employees,’ or when an individual employee seeks ‘to initiate or to induce or to prepare for group action’ or to bring group complaints to management’s attention.”
Although not a veteran himself, the employee sought to bring complaints about differential treatment of company and contractor veteran employees to management’s attention. Because he was advocating for others, and not himself, the comments could not be viewed as an unprotected personal gripe. In addition, the General Counsel found that he sought to induce group action because he initially engaged with another co-worker about his concerns, and then made the comments, which concerned working conditions, publicly on the company’s Facebook page. These comments were intended to improve working conditions for contractor employees, and even though they related to matters beyond the immediate employment relationship, they were protected. Finally, although off-duty, offsite use of social media may lose the protection of the Act if it is sufficiently “disloyal, reckless, or maliciously untrue,” the General Counsel found that the comments did not rise to that level.
Lessons Learned: This memorandum serves as a reminder to employers – unionized and non-unionized alike – that they must be careful in taking action against an employee for social media activity such as Facebook posts. Even though such activity may be offensive or disrespectful to the employer, it may be protected by the NLRA, depending on the content of the social media communications.