Social Media and the National Labor Relations Board

By: Thom K. Cope
February, 2012

Did you just fire an employee for bashing you and your company on Facebook? Twitter? If so, you may have violated the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB) is cracking down on employers who fire employees for posting negative things on the employee’s own Facebook page.

Section 7 of the NLRA gives employees the right to self organize and to “engage in other concerted activities” concerning wages, hours and working conditions. Concerted activity can be defined as the action of employees joining in confronting an employer or collectively discussing wages, hours and working conditions of their employment. Section 8 makes it an illegal, unfair labor practice for an employer to “interfere with, restrain or coerce” employees in the exercise of those rights.

And this applies equally to non-union employers, not just unionized employers.

The key to evaluating a Facebook or Twitter post is to determine whether or not the employee is airing a personal gripe or one that can be considered “concerted” action on behalf of that employee and their co-workers. If the employee posts something negative about a supervisor and the difficulty they are personally having with him or her, but says nothing about other employees, it may not be protected conduct and could be grounds for termination. However, if that same post solicits other employees to join in or in some way has a more global impact, it will be protected.

This protection is available even if the posts are rude, crude and engage in name-calling. However, the protection is lost if the employee slanders the company or supervisor by posting falsehoods. Here are some examples of Facebook posts that have been held protected activity. In these cases the NLRB held that the activity was concerted because the employees acted “with or on authority of other employees, and not solely by and on behalf of the employee himself:”

a) An employee posted complaints about staffing levels and the poor performance of a co-worker.

b) An employee called her supervisor a “scumbag,” but the posting concerned the supervisor’s action toward all employees. And the nasty comment was “provoked” by the supervisor.

c) Car salesperson posted critical comments about his employer’s open house introducing new high-end cars. He complained that the customers interested in high-end cars would not be impressed with the cheap food and beverages served (hotdogs and store bought cookies). It was held that his comments dealt with commissions and thus were protected.

d) Employees posted criticism about a restaurant’s tax withholding policies referring to one of the owners as “such an a_ _ hole.” Because these were “group” complaints the posts were protected.

On the other hand, the following posts were not protected and the employee terminations were upheld:

a) An employee tweeted comments critical of his employer’s copy editors. He also had several tweets with sexual context. The NLRB held that he never involved co-workers and these were individual gripes.

b) A bartender was upset that he didn’t get a raise and couldn’t share tips with the waitresses, posting comments on Facebook that the employer’s customers were “rednecks,” and that he hoped they choked on glass as they drove home drunk. None of these posts included his co-workers, nor did he solicit their input.

c) An employee posted profane things about her manager, saying there was “tyranny” at the store where she worked. The Board concluded that these were individual gripes because the employee only complained about her personal disciplinary issues.

These are all decided on a case-by-case basis.

As you can see, it is imperative to have a legal internet/blogging policy outlining appropriate or inappropriate Internet behavior. But be careful, as many of these policies run afoul of Section 8 by being so restrictive that employees feel intimidated. That is illegal.

It is extremely important that your policy conforms to the requirements of the NLRA. Prohibiting “inappropriate” comments or prohibiting employees from discussing their wages is too restrictive without more qualifying language.

In this emerging complex legal area, it is essential to have competent employment law counsel both in developing a comprehensive and legal internet/blogging policy and while responding to negative social media posts. Taking a proactive approach in addressing this policy with your employees is the best way to avoid issues down the road.

To learn more about social media and the National Labor Relations Board, or for legal services in other labor and employment related matters contact Tucson lawyer, Thom K. Cope at Udall Law Firm, LLP.

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