Organizations have been struggling with when and if they can discipline employees after discovering inappropriate Facebook posts about work. This uncertainty arose from the National Labor Relations Board’s (“NLRB”) interest in social media sites as a forum for employees to engage in “protected concerted activity” under the National Labor Relations Act (“NLRA”). (See NLRB Continues its Focus on Facebook Firings; The NLRB Takes A Different Approach: Newspaper Which Fired Reporter for Offensive Tweets did NOT Violate NLRA; and Why is the NLRB so Interested in Social Media? for a more complete description of some of those highly publicized charges.)
The NLRB has recently issued Advice Memoranda on this topic, and the memoranda provide some additional guidance that may be useful. Good news for employers! In each of those charges, the NLRB’s Office of the General Counsel concluded that not all Facebook posts authored by employees about the workplace will be protected by the NLRA. I’m going to discuss one of the memoranda today and another one tomorrow. Stay tuned!
As an aside, I found these charges interesting for the same reason I found the Facebook decision, Tatro v. University of Minnesota, interesting. They involve many of the same facts my clients see every day. So let’s see why the NLRB concluded in these charges that the employer had not violated the NLRA.
In the first charge, the charging party, a bartender, had a conversation on Facebook with his step-sister after she asked how his night at work went. The bartender responded that:
- He hadn’t had a raise in five years;
- He was doing the waitresses’ work without tips; and
- His customers were “rednecks.”
He topped off his rant with a comment that he hoped his customers “choked on glass as they drove home drunk.” Importantly, however, the bartender did not discuss his post with other employees, nor did other employees respond to his posts. Thus, the NLRB concluded that while the employee was talking about terms and conditions of employment, he was not engaging in concerted activity because other employees were not involved. What, then, was he doing? Merely venting to a family member about his night at work.
I also must mention that because the NLRB found there was no protected activity, it decided not to even touch upon the not-so-veiled threat in the Facebook post. From an employment perspective, I find the threatening remark important. The employee may have been venting about a bad night at work, but he also took it one step further by wishing harm on his customers. Not such a good idea in the hospitality industry (or any other come to think of it, see “threatening behavior” analysis in the Tatro decision.) This employer certainly should have had the right to discharge the employee based upon this threatening remark about the customers, or the damage such a remark could inflict upon the business reputation of a restaurant or bar.
Takeaways from this NLRB Advice Memorandum? Conduct is only protected when an employee is engaged in “concerted activity” so make sure to note whether other employees are involved in, or listening to, the conversation. In this case, the employee was talking about terms and conditions (which might have been protected), but not to other employees. As a result, his ill-advised comments were not protected by the NLRA.
Do your disciplinary procedures take into consideration that Facebook posts might be protected? What would you have done in this situation?