In its latest decision addressing protected activity in the context of employee social media posts, the National Labor Relations Board ("NLRB") held that a New York nonprofit unlawfully terminated five employees for posting criticisms of a co-worker on Facebook.

In response to a comment from a coworker, one of the five employees posted on her Facebook page on Saturday (a non-work day) that "a coworker feels that we don't help our clients enough . . . My fellow coworkers how do u feel?" (The coworker who made the original comment appeared to have a personal dispute with at least one of the posters and was trying to get the posters terminated or at least disciplined.) The post elicited a number of responses from the four other employees about their difficult working conditions. After the coworker who made the original comment complained about the posts, the Executive Director of the nonprofit immediately terminated the five employees and informed them that the posts constituted bullying and harassment.

The NLRB issued a complaint against the employer, asserting that the terminations violated Section 8(a)(1) of the National Labor Relations Act ("NLRA"). Section 8(a)(1) of the NLRA provides that it is unlawful to "interfere with, restrain or coerce" employees in the exercise of their Section 7 rights. Among other things, Section 7 protects the rights of employees to engage in "concerted activities" for the purpose of "mutual aid or protection." All employees enjoy Section 7 rights whether or not they are a member of a union, and regardless of whether or not they work for a unionized enterprise.

Traditionally, the NLRB and courts have broadly interpreted the scope of Section 7. Concerted activities have been held to include any discussion that an objective observer could determine was intended to lead to group action on matters of common concern. Discussions of wages or criticisms of supervisors among employees, regardless of the reasonableness of the words used, have been held to constitute protected concerted activity. Thus, even referring to supervisors as "a-holes" has not rendered activity unprotected; activity must be so extremely intolerable as to be "abusive" before it will lose Section 7 protection.

In this case, the NLRB determined that the Facebook postings, in reaction to a coworker's criticisms of the manner in which the employees did their jobs, constituted protected activity. The judge held that it was irrelevant that the employees "were not trying to change their working conditions and that they did not communicate their concerns" to their employer, because the employees "were taking a first step towards group action to defend themselves against the accusations they could reasonably believe [the coworker] was going to make to management." The NLRB ordered the employer to reinstate the employees and make them whole for lost earnings and benefits.

Shortly after this decision, the NLRB Acting General Counsel issued a memorandum reviewing fourteen recent unfair labor practice cases involving the use of Facebook, Twitter and YouTube. In these cases, the NLRB found the following employee activities involving social media protected: negative remarks about a supervisor, criticisms of the employer's sales event (which related to concerns over sales commissions), and postings concerning the employer's tax withholding practices. The NLRB also found other practices unprotected: a news reporter's critical tweets about his editors and a local television station, complaints about not getting a raise and doing work without tips, criticisms of the employer's services, and negative remarks about the employer's mentally disabled clients. The key factor in distinguishing between protected and unprotected activity is whether an employee, in making the comments, was seeking to induce or prepare for group concerted activity, or merely engaging in an individualized gripe.

In its memorandum, the NLRB also discussed several unfair labor practice charges involving employer social media policies, and determined that portions of the policies were unlawful, in that they could reasonably be construed as prohibiting protected conduct.

These developments demonstrate that the NLRB is at the forefront of enforcing employee social media rights, in both union and non-union workplaces. In light of the new posting requirement (see below), employers should be mindful that knowledge about the NLRB as a forum for resolving disputes concerning social media is likely to increase dramatically. Employers should carefully review their social media policies and practices to ensure that they are in compliance with the requirements of the NLRA, and be cautious when disciplining or terminating employees based on social media activity.