MASTERS SERIES FOLLOW UP: Is Your Employees’ Facebook Trash Talk “Concerted, Protected Activity”? NLRB’s Recent Advice Gives Employers Some Clues

by Abbey Moland

Moland, Abigail
(402) 341-3070

At our recent Masters Series seminar entitled “When Facebook Gets In Your Face: What Can You Do About Employee Use (Or Misuse) Of Social Media?”, we discussed some of the well-publicized, recent complaints issued by the NLRB targeting employers’ discipline of employees for inappropriate use of Facebook, Twitter, and other forms of social media. In that first highly publicized case, a complaint was filed accusing a company of firing an employee for criticizing her boss on Facebook. The case was ultimately settled and the company agreed to revise its Internet policy to allow employees to discuss wages, hours and working conditions with coworkers outside of the workplace, and refrain from disciplining or firing employees for engaging in those discussions.

On April 12, 2011, the NLRB General Counsel, Lafe Solomon, issued a directive, mandating that the agency’s Regional Directors submit to his office’s Division on Advice all cases “involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter,” prior to issuing administrative complaints.

That action appeared to have resulted from the level of publicity surrounding the first complaint and was intended to assist the NLRB in developing a consistent national policy on pursuing these types of claims. On the heels of the GC’s memo come three separate decisions from the Division of Advice determining that certain activity, similar to the earlier publicized cases, did not constitute concerted, protected activity.

The first decision, issued July 7, 2011, involved a bartender who was fired after posting a message on his Facebook page directing offensive remarks at the restaurant’s customers as well the restaurant’s tipping policy. The Facebook post was directed to a family member with whom he did not work. The Division of Advice noted that although the bartender and a coworker discussed the tipping policy, the bartender neither raised the issue with management, nor discussed the contents of his Facebook post with coworkers. The advice memorandum concluded that the employer did not violate the NLRA by terminating the employee, as the Facebook post did not constitute “concerted activity” warranting protection. The memorandum noted that the bartender was merely responding to a question from his stepsister about how his evening at work went. Furthermore, the “conversation” did not grow out of his prior conversation with a fellow coworker months earlier about the tipping policy. Such activity, the memo concludes, does not amount to activity “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”

Likewise, in the second case, issued July 19, 2011, the Division of Advice also dismissed a charge due to insufficient evidence of concerted activity. An employee of a residential facility for homeless people engaged in a Facebook conversation with a non-coworker making fun of the facility’s mentally disabled clients. A former client saw the posting and, offended by it, reported the posting to the employer. The employer fired the employee for the posts, for raising confidentiality concerns, and for using Facebook during work time. As with the first case, the Division of Advice found that the employer’s actions did not infringe upon any protected activity, because the posting did not mention any terms or conditions of employment and her posts were not an “outgrowth of the employees’ collective concerns.”

In the third case, also issued July 19, 2011, an employee was disciplined for making profane comments on his Facebook page that criticized his manager. The remarks were directed to his friends, which included some fellow employees. Two coworkers responded to this comment, prompting the employee to make additional comments critical of the employer. As in the two other cases, the Division of Advice found that there was no evidence of “concerted activity for mutual aid or protection” in this situation, as the Facebook postings were made “solely by and on behalf of the employee himself.” The memorandum noted that, in essence, the employee’s postings amounted to “an expression of an individual gripe.” “They contain no language suggesting the employee sought to initiate or induce coworkers to engage in group action; rather they express only his frustration” regarding an “individual dispute” with a particular manager over a particular situation. Notably, the Division of Advice also looked at the content of his coworkers’ responses to his postings to conclude that the responses indicated that the original posting was intended to  express humor and “pleas for emotional support.” The responses did not provide evidence “that establishes that the Charging Party’s postings were the logical outgrowth of prior group activity.”

The Division’s highly fact-driven analyses of these cases submitted for advice give employers minimal guidelines for determining when an employee’s social media use is protected by the National Labor Relations Act (“NLRA”). First, it must be noted that the rationale of the decisions seems to depart from the first complaint that was issued concerning remarks critical of a supervisor on Facebook. Second, it must be kept in mind that these decisions from the Division of Advice are not binding precedent, and the Division is free to change its position with respect to unfair labor practices filed in the future. With that in mind, these recent decisions demonstrate that, at a very minimum, it is crucial for employers, prior to taking disciplinary action related to an employee’s use of social media, to obtain information related to: (1) the content of the posting; (2) the identity of the intended recipient(s) of the posting; (3) the content of any responses; (4) the identity of other participating parties; (5) the subject matter(s) of the posting and whether it relates to any terms and conditions of employment subject to the protections of the NLRA; and (6) whether the content is related to any prior group discussion or collective activity.

What remains clear is that employers must exercise care in handling social media issues and treat recent Board advice in these cases as an invitation to revisit their own social media policies and seek the advice of counsel before taking adverse action against employees based on social media use.

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