A little known feature of the federal law governing labor relations in the private sector — the National Labor Relations Act (NLRA) — is the right of even non-unionized employees to engage in so-called "protected concerted” activity. Non-union employers can be and often are caught in the trap arising from this right unawares.
If one non-union employee gets fed up with his or her working conditions and walks off the job, that employee generally can be, and often is, fired without legal consequence. However, if two, three, or more employees decide over lunch in a break room in the same workplace that they have had enough of their supervisor's abuse, walk off their jobs, and file an unfair labor practice charge with their local NLRB office, the result will almost certainly be different. Not only will the group probably get free legal representation all the way to the U.S. Supreme Court if necessary — they almost certainly will get their jobs back with back pay for any period they are unemployed.
Why is this? It comes down to the "concerted" nature of their activity. When employees act in concert, rather than alone, subject to a few limited exceptions, the NLRA generally protects them from reprisal for their concerted action. Thus, employers that take adverse action against employees who have been acting in concert to protest or air grievances related to their working conditions basically do so at their own risk.
This is the legal principle in action in an NLRB administrative law judge’s September 2, 2011 decision involving Facebook postings by certain employees of Hispanics United of Buffalo (HUB).
In Hispanics United of Buffalo, one employee asked a number of colleagues from work — who also happened to be Facebook friends — what they thought about a comment by another colleague who had disparaged their work productivity. A lively discussion peppered with obscenities ensued. When the alleged disparager brought the conversation thread to the attention of their supervisor, four commenting employees and the employee who had posed the original question were let go. The stated rationale: the five had engaged in “harassment” of the employee who had complained regarding their productivity.
Not so, Judge Arthur Amchan, an NLRB administrative law judge, found.
In discussing the complaints that had been leveled against them, the five were engaged in “concerted” activity protected under the NLRA, Judge Amchan found. “The discriminatees herein were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [their colleague] was going to make to management. By discharging the discriminatees on October 12, Respondent prevented them by [sic] taking any further group action vis-a-vis [their colleague’s] criticisms.” Nor, Judge Amchan found, did any of the exceptions to the rule that might cause the employees’ speech to lose its protection apply.
The Facebook posts were not made at work and not made during working hours. Moreover, despite at least some of the employees’ use of obscenity, Judge Amchan found, there were no “outbursts” “so opprobrious as to lose protection under the Act.” Finally, after reviewing the employer’s anti-harassment policies, Judge Amchan concluded there was simply no harassment occurring since none of the posts had any nexus to any characteristic identified as protected under those policies like sex or race. As a result, HUB has been ordered to reinstate the five workers with back pay.
Hispanics United of Buffalo echoes the result of another recent NLRB case involving Facebook postings that American Medical Response settled after the agency issued a complaint alleging that it unlawfully fired an employee who posted complaints about an AMR supervisor on a Facebook page. Although HUB has a right of appeal to the NLRB, the federal Court of Appeal, and the United States Supreme Court if it so desires, the outcome of the case is not really that surprising.
In general, the law in this area is rather employee-friendly. Although under certain limited circumstances "concerted" activity can lose its protection, by and large the cases that find that employee speech has been so intemperate or disloyal as to go over the line and lose its protection under the NLRA involve speech that is either somehow threatening or unquestionably defamatory.
This is not to say that the loss of protection cannot happen, but the prudent employer considering discipline of employees in such circumstances will always consult with their legal counsel before proceeding. Similarly, the increasing number of employers who now make it a practice to seek out and review Facebook or other Internet postings by employees or applicants should tread with caution. Although the Fair Credit Reporting Act, the principal federal law governing employer background checking, generally does not apply to checks conducted internally by an employer’s own staff, some states — including California — have laws that apply even to employers’ checking of publicly available records that concern “an arrest, indictment, conviction, civil judicial action, tax lien, or outstanding judgment.” Depending on what you actually find on an applicant’s or employee’s Facebook page, such state law requirements could at least arguably come into play.