When may employers discharge workers for social media posts critical of the employer, and when are such posts “concerted activity” protected by the National Labor Relations Act? The National Labor Relations Board is still trying to draw that line. In three recent memoranda of advice, the NLRB’s Division of Advice found employee posts unprotected by the Act because they were not “concerted activity.” On August 18, 2011, the NLRB’s Acting General Counsel issued a memorandum summarizing these and other cases considered in the past year. See http://op.bna.com/ dlrcases.nsf/id/ldue-8kupgf/$File/Social%20Media%20OM%2011-74.pdf

According to the Division, an individual’s conduct is concerted when he/she: acts “with or on the authority of other employees”; seeks to “initiate, induce or prepare for group action”; brings “truly group complaints to the attention of management”; or takes actions that are the “logical outgrowth of concerns expressed by the employees collectively.” On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted, and mere “griping” is not protected. See Wal-Mart, Case 17-CA-25030 (July 19, 2011); JT’s Porch Saloon & Eatery, Ltd., Case 13-CA-46689 (July 7, 2011).

In Wal-Mart, an employee upset with his supervisor posted the following comment on his Facebook page: “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!” Coworkers responded with laughter and expressions of emotional support such as “hang in there.” In a second post, the employee referred to the supervisor as a “super mega [expletive],” described her actions as “retarded,” made reference to “false advertising,” threatened to take “this sh**” to the manager, and concluding that if things did not change “walmart can kiss my royal white a**.” The employee was discharged after a coworker gave a copy of the post to the store manager. The Division found no concerted activity because the employee’s posts merely expressed “an individual gripe,” contained nothing suggesting an intent to initiate or induce group action by coworkers, were not the logical outgrowth of prior group activity, and were apparently viewed by coworkers as an individual gripe given their responses of laughter and emotional support.  

In JT’s Porch Saloon & Eatery, a bartender was discharged for complaining on Facebook about his employer’s policy that waitresses do not share tips with bartenders, even when the bartenders help serve food. When his non-coworker sister-in-law asked him via Facebook how his shift went, the bartender responded that he had not had a raise in fi ve years, that he was doing waitress work without tips, and that the employer’s customers were “rednecks” and he hoped they choked on glass as they drove home drunk. The bartender had previously discussed the tipping policy with another bartender, who agreed that it “sucked.” The Division found no “concerted activity” because the bartender did not discuss his post with any coworker beforehand or afterward, no coworker responded to the post, the post did not grow out of the earlier conversation or any employee meeting or discussion about the tipping policy, and no one had ever raised the issue with management.

In Martin House, Case 34-CA-12950 (July 19, 2011), a recovery specialist at a residential mental health facility was discharged for discussing her shift with a non-coworker friend on her Facebook wall during her shift, including noting that a patient was laughing, possible “at her voices.” The Division found no “concerted activity” because the employee did not discuss her post with any coworker, no coworker responded to the post, the post did not grow out of the employees’ collective concerns, and the employee was not seeking to induce or prepare for group action.  

The lesson for employers: The line between protected and unprotected posts and tweets is still being drawn. Proceed with great caution.

The lesson for employees: Trashing your employer in posts and tweets is not a smart career move.