As the pace of social media continues to accelerate exponentially, the National Labor Relations Board has sought to define the parameters of an employee’s right to engage in “protected concerted activity” in the brave new world of Facebook, Twitter, LinkedIn and other such emerging internet based forums that permit employees to speak their minds (or whatever) about their supervisor or the employer in general. As the NLRB has wrestled with the application of long standing legal precedents to the unforeseen new age of electronic communication, early opinions and advice memoranda have been difficult to harmonize and apply to emerging workplace developments. However, in a series of three Advice Memoranda issued earlier this month, the NLRB appears poised to establish a more consistent approach to evaluating whether such electronic communications constitute “protected concerted activity.” In each of these three memoranda, the NLRB recognized that protected activity can involve “circumstances where individual employees seek to initiate or to induce or to prepare for group action,” or where individuals bring “truly group complaints” to management’s attention. In each of these three cases, applying consistent criteria, the NLRB found that no protected concerted activity existed.
In the first case, a bartender complained on Facebook to a relative about his employer’s tip policy and no raises for years, as well as referring to the customers as “rednecks” and other disparaging terms. In the second case, a Walmart employee, upset with a new manager, posted “Wuck Falmart” and other more profane comments, on his Facebook wall. In the last case, an employee of a homeless shelter carried on a Facebook conversation on company time, making inappropriate comments about the residents. In each of these three cases, the NLRB held that no protected concerted activities took place, finding that each employee was airing individual concerns.
What does all of this mean? In considering whether to terminate or discipline employees for comments made in social media, particular attention needs to be focused on whether the employee is commenting on purely personal concerns, or whether they are raising complaints discussed with others, or designed to induce group action. A relevant consideration in each of the three cases mentioned above was the extent and nature of any coworker comments on any of the postings. If coworkers wade in with comments agreeing with the employee’s complaints, as opposed to jests or offering emotional support, this could be grounds to find the employee’s posts to be protected activity. The NLRB also noted in these cases that even if they had found protected activity existed, the employee’s profane or otherwise inappropriate behavior (posting on company time), could be sufficient to render otherwise protected activity to be unprotected.
As this is an area of law which is rapidly evolving, be sure to be aware of the current state of the law before disciplining or terminating an employee for comments made through social media which concern the terms and conditions of their employment.
For California clients remember, under the California Labor Code you cannot take any adverse action against employees for complaining about working conditions. If you are concerned about any postings as noted above just remember to consider whether the comments are personal or are legitimate business complaints that need to be addressed.