The National Labor Relations Board (NLRB) garnered substantial publicity in 2010 and early 2011, for its complaints against Advanced Medical Response of Connecticut (AMR), Hispanics United of Buffalo and Thompson Reuters, which disciplined employees over negative comments posted on online social media sites.
Referred to as the “Facebook Cases,” the NLRB accused those employers of violating Section 8(a)(1) of the National Labor Relations Act (“Act”) by enforcing their social media policies and interfering with employees’ Section 7 right to engage in concerted activity. The NLRB also alleged that certain policies were per se violative of employee rights. An employer may commit a per se violation of the Act simply by maintaining a policy it has never enforced, if that policy has a chilling effect on concerted activity. Such policies include restricting off-duty access to parking lots or requiring pre-approval of postings on bulletin boards, because those policies can inhibit communication among employees about the workplace or the employer.
Settling the AMR case, the employer agreed to “revise its overly broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”
The NLRB has attempted to clarify the circumstances under which it will or will not allege violations of the right to engage in concerted activity, issuing three separate advice memoranda in July. In one situation, a care worker in a residential facility for the homeless, in which many of the residents suffer from mental illness or substance abuse, was discharged after engaging in a Facebook conversation with a non-employee friend about her work and the “spooky” environment (Martin House, Case No. 34-CA-12950). In another, a bartender was discharged after a Facebook conversation with his step-sister complaining about the employer’s tip sharing policy, his lack of a pay raise and his “redneck” customers, expressing a hope that they “choked on glass as they drove home drunk” (JT’s Porch Saloon and Eatery, Ltd., Case No. 13-CA-46689). In the third, a Walmart employee was disciplined after a Facebook conversation with a group largely composed of coworkers, complaining about management and its policies (Walmart, Case No. 17-CA-25030).
In each case, the NLRB concluded that the employer did not violate the employee’s rights. The first two appear relatively straightforward: neither employee was talking via Facebook to co-employees or expressing group complaints to management. In Martin House, the employee was conversing via Facebook with a friend about working alone overnight in a mental institution, and about some of the residents under her care. In JT’s Porch, the bartender had a conversation with a coworker months earlier about the tip sharing policy, but neither approached management. The Facebook conversation leading to discharge was with his step-sister, not a coworker. (Ironically, he was notified of his discharge via Facebook.) In both instances, the conversation was considered private and not concerted activity because the employee was talking about work to friends or relatives who were unrelated to the workplace. In Martin House, the conversation did not qualify as concerted activity because the employee was “merely communicating with her personal friends about what was happening on her shift.” In JT’s Porch, the NLRB’s General Counsel reached a similar conclusion, but went further and determined that the “internet ‘conversation’ did not grow out of his prior conversation with a fellow bartender months earlier about the tipping policy.”
The Walmart case was more complicated, because it involved coworker communication and discussion of workplace complaints. After a confrontation with management, the employee posted to his Facebook friends, “Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!” His list of Facebook friends included several coworkers, two of whom responded to his posts:
Coworker 1: bahaha like! 🙂
Coworker 2: What the hell happens after four that gets u so
wound up??? Lol
The employee responded: “You have no clue [Coworker 1]…[Assistant Manager] is being a super mega puta! Its retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting it for that price…that’s false advertisement if you don’t sell it for that price…I’m talking to [Store manager] about this **** cuz if it don’t change walmart can kiss my royal white ***!”
Unlike Martin House and JT’s Porch, the Walmart employee was not discharged, but only suffered counseling, a one-day unpaid suspension and prohibition from promotion for one year. Nonetheless, he charged Walmart with violating Section 8(a)(1) of the Act by imposing discipline for protected concerted activity.
The NLRB’s General Counsel rejected that claim, finding that:
“[T]he Charging Party’s Facebook postings were an expression of an individual gripe. They contain no language suggesting the Charging Party sought to initiate or induce coworkers to engage in group action; rather they express only his frustration regarding his individual dispute with the Assistant Manager over mispriced or misplaced sale items. Moreover, none of the coworkers’ Facebook responses indicate that they otherwise interpreted the Charging Party’s postings.”
The NLRB went further to declare that the postings were not “the logical outgrowth of prior group activity.”
Where do the Memoranda leave employers? First, social media policies should be carefully reviewed to avoid the type of per se violations for which the NLRB has filed complaints. Policies which prohibit all discussion of wages, hours, and terms and conditions of employment will probably run afoul of Section 7. Second, employers can continue to issue and enforce policies against use of social media while on duty, prohibiting release of confidential information regarding customers or clients, or the employer’s confidential business data, other than postings about wages, and terms and conditions of employment. Finally, any employee workplace complaints posted in social media policy should be carefully examined. Determine the audience and who, if anyone, has responded. If the complaint is directed toward coworkers, or the employee claims to speak on behalf of coworkers, exercise caution and determine whether Section 7 rights are involved. However, if the audience is purely private, and the comments are not collectively expressed, the Memoranda support the employer’s right to discipline. iBi