Are All Employee Facebook Posts Protected Concerted Activity?

This article comes from our Fall 2011 Water Cooler Newsletter
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Over the past several years, there has been a great deal of hype over the increased focus of the National Labor Relations Board (NLRB) on employees’ social media communications regarding terms and conditions of employment and employers’ social media policies that limit or restrict employees’ use of social media. For example, we have written about several NLRB complaints filed against companies that terminated employees for negative Facebook posts about their employers.

The early trend in these complaints did not appear favorable for employers. But more recent events beg the question: has the NLRB signaled a retreat? Perhaps. Last month, the NLRB refused to issue complaints in three instances where employees had been disciplined for social media posts. In addition, the NLRB’s Acting General Counsel issued a report summarizing the NLRB’s recent social media decisions.

Protected Concerted Activity (PCA)

Section 7 of the National Labor Relations Act (NLRA) protects employees who engage in “concerted activity” for their “mutual aid and protection.” Generally, the NLRB’s test for protected concerted activity (PCA) is whether the activity is “engaged in with or on the authority of other employees” (i.e., not solely by and on behalf of the individual employee). PCA may also be found when it is the “logical outgrowth of concerns expressed by the employees collectively.”

The NLRB’s Division of Advice indicated that these situations did not qualify for protection:

• A bartender had a Facebook conversation with his stepsister in which he complained that he had not had a raise in five years and did the job of a server without receiving tips. The conversation also contained rude comments about customers. No co-worker responded to the comments.
• A recovery specialist at a non-profit residential facility for homeless people had a Facebook conversation while at work with two non-employee friends. She posted comments about how the overnight shift was “spooky” and made jokes about the clients. No co-worker responded to the posts.
• A customer service employee at a large retail store posted disparaging remarks about her manager and later added a profane rant about the incident that precipitated the original post on Facebook. Co-workers responded only with “hang in there”-type remarks.

These cases suggest that online personal attacks that are posted generally or sent to non-employees, and do not evidence group action, are not guaranteed protection under the NLRA.
On the other hand, the Acting General Counsel’s report discussed several situations the NLRB found to be PCA, including the following:

• An employee’s negative Facebook post about her supervisor that drew supportive comments from co-workers and led to further negative comments by the employee.
• A former employee posted dissatisfaction that she owed state taxes because of her employer’s tax withholding policy and inability to do paperwork correctly. One employee clicked “Like” and other employees asserted they also owed money and intended to discuss it at a meeting.

These situations lead to some guiding principles that should be helpful when an employer considers an employee’s social media activity. For example, a single employee griping about his or her job is typically not PCA. Also, the content of co-workers’ supportive comments is important -- a co-worker merely expressing sympathy might not constitute PCA, but a call to collective action likely does.

Policy Concerns

A work rule or policy violates the NLRA if the work rule restrains or explicitly restricts employees from exercising their rights under the NLRA, including their right to engage in PCA. A rule is unlawful if (1) employees would reasonably construe the language to prohibit (or “chill”) the exercise of their rights under the NLRA, (2) the rule was promulgated in response to union activity, or (3) the rule has been applied to restrict the exercise of the employees’ rights under the NLRA.

The report discussed several examples of social media policies that violated the NLRA. Specifically, the following social media policies were unlawful:

• Prohibiting employees from making “disparaging comments” or engaging in “inappropriate discussions” about the company, superiors or co-workers.
• Prohibiting employees from posting pictures of themselves which depict the company in any way.
• Prohibiting “offensive conduct” and “rude and discourteous behavior” in a broad manner, without limiting language that would remove the rule’s ambiguity with regard to PCA.

In general, the NLRB finds that broad prohibitions reasonably tend to chill the exercise of employee rights under the NLRA.

Conclusion

Employers must exercise caution in both drafting and enforcing social media policies. All employers, whether union or non-union, should review their social media policies to determine whether the policy could reasonably tend to chill employees in the exercise of their rights to discuss terms or conditions of employment and workplace concerns. If the answer is yes, the policy should be modified.

Further, employers must remember that social media activity must be analyzed on a case-by-case basis with an eye towards the audience and the content of supportive comments. In case of doubt, legal counsel should be consulted to help evaluate the risks of enforcing the related work rule policies.