Part I | Part II | Part III

With the expansion of social media, employees’ complaints about their employers are now being voiced through Facebook® and other quasi-public social media outlets.  The question has therefore emerged: when can an employee be disciplined or terminated for comments made through social media regarding an employer, supervisors and/or co-workers?

National Labor Relations Board (“NLRB”) decisions may not be binding on local public safety agencies, but their decisions serve to signal trends in legal thinking on these issues and are often cited by arbitrators in resolving disputes between officers and agencies in unionized public safety environments.  Therefore, recent NLRB decisions indicating what types of social media activity are protected from employer discipline are helpful in determining what types of social media policies will be likely to withstand scrutiny when facing challenges in court or in arbitration.

The question of whether certain social media activity is deemed to be protected by the NLRB tends to center around the particular expression’s value as “concerted activity”, as protected by the National Labor Relations Act (“NLRA”).  Section 7 of the NLRA states, in part, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” 29 USCS § 157.

Essentially, employee statements made via social media tend to be protected under circumstances in which the NLRB has determined that the speech was intended to serve as “concerted activities for the purpose of collective bargaining or other mutual aid or protection”.  Id.  As the NLRB views it, the challenge lies in applying long-established standards of protected speech to comport with new technology.  The NLRB recently stated “Although the employees’ mode of communicating their workplace concerns might be novel…the analytical framework for resolving their discharge allegations has long been settled.”  Hispanics United of Buffalo, Inc. and Carlos Ortiz, 359 NLRB No. 37 (2012).  It appears to be the NLRB’s position that the ability to communicate broadly through social media outlets has not fundamentally altered its understanding of employee rights to engage in NLRA-protected “concerted activity” that has been established in decades-old NLRB decisions.

In 1986, the NLRB described the parameters of “concerted activity” protection for employees in holding  that “[O]ur definition of concerted activity…encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.”  Meyers Indus., Inc. (Meyers II), 281 N.L.R.B. 882 (1986).  In other words, “concerted activity” is not limited to an employee bringing forth concerns as a representative on behalf of co-workers.  Rather, it can often be an initial, isolated statement or complaint that is deemed to have been intended to begin a dialogue surrounding an issue of common concern for coworkers.

Recent NLRB decisions have declined to protect social media statements that convey narrow and individualized complaints that do not concern the working conditions of co-workers more broadly.  In one recent case, a bartender who posted complaints concerning an employer restaurant’s policy of not requiring waitresses to share tips with bartenders was found not to have been engaging in “concerted activity” under the NLRA, and his challenged termination was upheld.  JT’s Porch, 13-CA-046689 (2011).  The focus of his posting was actually geared towards derogatory comments about the employers “redneck” customers rather than the employer’s tipping policy.  Furthermore, the bartender’s complaints were not responded to by any co-workers online nor did he discuss the policy complaints with them at work following the posting.

In a 2011 case, the NLRB dismissed an employee’s claims that his profanity-laced complaints regarding his unique and individualized treatment as an employee were protected “concerted activity”.  While dismissing the claim, however, the NLRB did not address the question of whether the manner in which these views were expressed were relevant, stating “We conclude that the charge should be dismissed…because there is insufficient evidence that the Charging Party engaged in concerted activity.  Accordingly, we need not address whether his comments were so opprobrious that they lost the Act’s protection.”  Walmart, 17-CA-25030 (2011).

However, in the case of Hispanics United of Buffalo, Inc., an employee’s harsh words for a co-worker posted on Facebook® were held to be protected “concerted activity”.  The NLRB reasoned that her “Facebook communication with her fellow employees, immediately after learning that Cruz-Moore planned to complain about her coworkers to [Executive Director], had the clear ‘mutual aid’ objective of preparing her coworkers for a group defense to the complaints.”  Hispanics United of Buffalo, Inc. and Carlos Ortiz, 359 NLRB No. 37 (2012).

Of some concern to employers is the fact that, in cases such as the aforementioned, the NLRB does not appear to be concerned with the manner in which a possibly protected concerted activity is expressed.  That is to say, profanity-laced tirades aimed at employers do not appear to be viewed any differently by the NLRB than those which are respectful in their tone.  As in the aforementioned JT’s Porch case, the dismissal of the bartender’s claim makes no mention of his derogatory comments regarding patrons, but rather focuses solely on whether the statements were intended to rally co-workers.  JT’s Porch, 13-CA-046689 (2011).  

These NLRB decisions are relevant not because they are binding upon local public safety agencies, but because they signal interpretive trends and are often utilized in arbitration.  In the coming months and years, the NLRB can be expected to publish more fact-specific decisions which will presumably cast additional light on what is considered to be protected “concerted activity” by employees speaking out via social media.  But for the time being, the aforementioned NLRB decisions offer some guidance for public safety agencies seeking to implement legally defensible social media policies that do not infringe on employees’ rights to speech.

Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.

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