Section 8(a)(1) of the National Labor Relations Act (“NLRA”) grants employees, in unionized and non-unionized workplaces alike, the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  29 U.S.C. § 157.

The National Labor Relations Board (“NLRB”), which enforces the NLRA, attracted considerable attention in late 2010, when it filed a complaint against an employer alleging that the company had committed an unfair labor practice by firing an emergency medical technician for making derogatory remarks about her supervisor on Facebook. The NLRB complaint alleged that the Facebook postings, made after the company had denied the employee’s request to have a union representative present during an investigatory interview, constituted protected concerted activity. The company denied the allegations, asserting that the technician was discharged for rude behavior toward patients and not for her comments on Facebook. This “Facebook firing” case has since settled, so no formal decision was published.

Although the NLRB has not yet had the opportunity to issue a formal ruling addressing whether and in what circumstances employment-related social media postings are protected by the NLRA, the NLRB’s Division of Advice recently considered three social-media-related unfair labor practice charges filed with the agency and issued a trio of Advice Memoranda to the NLRB’s Regional Offices making clear that not every job-related grievance an employee might post on the internet is protected concerted activity. The aggrieved employees in all three cases claimed they had been discharged or disciplined for making job-related complaints on Facebook.

The Advice Memoranda primarily focused on whether the Facebook postings satisfied the established test for concerted activity. To be concerted in nature, the activity must have been “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”  This is a highly fact-specific determination. Concerted activity is found when the circumstances involve group activities, whether the activity is formally authorized by the group or otherwise. In some cases, even individual activities that are the “logical outgrowth of concerns expressed by the employees collectively” are considered concerted.

NLRB Associate General Counsel Barry J. Kearney determined in his Advice Memoranda that the Facebook postings in each case constituted individual gripes rather than concerted complaints, and consequently the employees were not protected from discipline or termination under the NLRA based on these postings.

Bartender’s Facebook Complaints to Non-Employee Family Member Not Concerted.

One of the Advice Memoranda addressed a charge filed by a bartender at an Illinois restaurant. Under the company’s policy, waitresses do not share their tips with the bartenders, even though the bartenders help serve food to customers.

At some point, the aggrieved employee complained to a fellow bartender about the tipping policy, and she agreed that it “sucked.”  Neither employee raised the issue with management. Instead, several months later, the aggrieved bartender engaged in a Facebook discussion with his step-sister, a non-employee, who asked how his night at work had gone. In response, the bartender complained that he had not had a raise in five years and was doing the waitresses’ work without the benefit of tips. He also posted derogatory comments about the restaurant’s customers, calling them “rednecks” and stating that he hoped they choked on glass as they drove home drunk.

About a week later, the restaurant owner notified the bartender, via Facebook message, that his services would no longer be required. The next day, the day manager terminated the bartender’s employment for his Facebook posting about customers.

The Advice Memorandum found that even though the bartender’s Facebook comments did address terms and conditions of his employment and therefore met one of the standards for protected activity, the internet activity was not concerted in nature and therefore was not protected. Rather, the internet posting was simply a response to an inquiry from a family member about the bartender’s evening at work. The Memorandum pointed out that the bartender did not discuss the social media posting with any of his coworkers either before or after he wrote it, and none of his colleagues responded to the posting. The bartender had made no attempt to initiate group action regarding the tipping policy or to raise his complaints with management. According to the Memorandum, this Facebook exchange did not grow out of the bartender’s previous conversation with a fellow bartender that had occurred months earlier.

Internet Conversation with Friends About “Spooky” Work Shift in “Mental Institution” Not Protected Concerted Activity. 

The NLRB issued another Advice Memorandum in a case involving a recovery specialist who worked at a residential facility for homeless people. The recovery specialist was assigned to a program designed for residents with significant mental health issues. While working an overnight shift, the employee engaged in a conversation with friends on her Facebook wall in which she stated that it was “spooky” to work at night in a “mental institution” and joked about hearing voices and popping pills with the residents.

None of the individuals who replied to the recovery specialist’s postings were coworkers; indeed, the recovery specialist was not “Facebook friends” with any of her colleagues. She was “Facebook friends,” however, with a former client of her employer, who saw the postings and reported them to the employer. The recovery specialist was discharged for her Facebook postings, which her employer deemed not “recovery-oriented” in nature and which disclosed confidential information about clients. The employer also noted that the posts were entered on work time when the recovery specialist should have been performing job-related duties.

The Advice Memorandum concluded that the recovery specialist had not engaged in concerted activity and in fact had not even mentioned the terms and conditions of her employment. Instead, she had merely communicated with her personal friends about what was happening on her work shift. She did not discuss her Facebook posts with her fellow employees, and none of her coworkers participated in the internet exchange. The aggrieved employee was not seeking to induce or prepare for group action and her activity did not grow out of employees’ collective concerns.

Job Gripes Not Concerted Activity, Even When Coworkers Made Supportive Remarks in Reply.

The third of the recent Advice Memoranda addressed internet postings by a customer service employee at a retail store who made Facebook postings complaining that the assistant manager had “chewed [him] out.”  The postings stated, “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!”  The customer service employee also commented, in a posting riddled with expletives, that he would be talking to the store manager about his grievances.

A few of the customer service employee’s coworkers responded to his Facebook postings and made supportive replies, such as “hang in there.”  At least one coworker also brought the postings to the attention of the store manager, who disciplined the customer service employee for his Facebook postings and warned that further behavior of this nature would result in his termination.

The Advice Memorandum concluded that, even though coworkers replied to the postings, the customer service employee’s internet activity was merely an expression of an individual gripe and did not amount to concerted activity. The Facebook postings contained no language suggesting that the employee sought to initiate or induce coworkers to engage in group action; rather, they expressed only his frustration regarding his individual dispute with the assistant manager. Further, none of the coworkers’ responsive postings indicated that they interpreted the customer service employee’s postings otherwise.

Because it determined there was no concerted activity, the Memorandum did not address whether the employee’s use of profanity in his Facebook postings was so opprobrious as to deprive him of the NLRA’s protection.

Practical Implications for Employers

Before disciplining or terminating employees based on social media postings, employers should carefully analyze whether the postings might be protected concerted activity under the NLRA. If so, any adverse action taken against the employees might constitute an unfair labor practice under the NLRA, even in a non-union work environment.

Factors to consider include the following:  (1) whether the employee is using a social media platform to comment on wages, benefits, hours, and other terms and conditions of employment; (2) whether the social media activity appears to be undertaken on behalf of a group of employees, authorized by a group of employees, or otherwise related to group actions; (3) whether the employee’s coworkers had access to the social media postings; and (4) whether coworkers responded to or otherwise participated in the social media discussion or posting and, if so, whether their responses suggest group action.

Employers should proceed with caution and seek legal advice when making employment decisions based on social media postings, as the law under the NLRA in this area is just starting to develop.