A recent National Labor Relations Board (“NLRB”) decision underscores the importance of exercising care when disciplining employees for social media postings, given certain employee rights under the National Labor Relations Act (“NLRA”).
In Bettie Page Clothing, 359 N.L.R.B. No. 96 (April 19, 2013), two employees were in a dispute with their manager about store closing hours (they had personal safety concerns) and posted comments about their dispute on a Facebook page. They were terminated and pursued a challenge under the NLRA. The NLRB upheld an administrative law judge’s finding that the reason for their termination was the Facebook postings which constituted “protests of supervisory conduct” and, thus, were “protected concerted activities” under Section 7 of the NLRA:
The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns . . . . Such conversations for mutual aid and protection are classic concerted protected activity, even absent prior action.
In other words, just because employees’ concerns are posted on social media, like Facebook, doesn’t mean they are outside the scope of Federal Labor Law protection. Such postings can constitute protected “concerted activities” – i.e., “two or more employees taking action for their mutual aid or protection regarding terms and conditions of employment.” In certain situations, one employee may also engage in “concerted activities.”
Takeaways: Employers should exercise caution before reacting to a situation where employees have made social media postings about their terms and conditions of their employment. Legal counsel should be consulted and the right path determined for addressing the situation in a manner that does not violate employee rights to engage in “concerted activities” under Section 7 of the NLRA.