Q. We’ve heard about the National Labor Relations Board’s (NLRB) focus on an employee’s right to post critical work-related comments on Facebook. However, we also heard that the NLRB has started to limit its view on whether such comments are protected concerted activity. What’s going on?
A. Recently, the NLRB’s general counsel has found that not all employee statements about their employers on social media sites constitute protected concerted activity under the National Labor Relations Act.
In July, the NLRB issued three advice memoranda that concluded that three employees who posted critical comments on Facebook concerning their jobs did not engage in protected concerted activity.
One memorandum concerned a bartender who complained to his stepsister on Facebook about his employer’s tipping policy and that he hadn’t had a raise in five years.
The NLRB held that the employee did not engage in concerted activity because he did not discuss his posting with his co-workers and none of his co-workers responded to it. There had been no employee meeting, nor any attempt to initiate group action with regard to raises or the tipping policy. There had been no effort to take the employee’s complaints to.
The second memorandum concerned a Walmart employee who posted comments on his Facebook page criticizing store management.
The NLRB held there was insufficient evidence that the employee engaged in concerted activity because the Facebook posting was an expression of an individual gripe and did not contain language suggesting that the employee sought to initiate or induce co-workers to engage in group action.
The third memorandum concerned an employee who worked at a residential facility for homeless people and posted on her Facebook page that it was “spooky” working overnight in a “mental institution.”
The NLRB held that the employee did not engage in protected concerted activity because she did not mention any terms or conditions of employment, did not discuss her Facebook post with co-workers and none of her co-workers responded to the post. The employee was not seeking to induce or prepare for group action, and the employee’s activity was not an outgrowth of the employees’ collective concerns.
What effect does this have on us?
Q. What do these recent developments mean for employers?
A. The NLRB’s advice memoranda indicate that the NLRB may be backing away from its earlier broader position of viewing employee comments on Facebook as protected concerted activity.
They also show that the NLRB may not view mere employee griping as protected.
In evaluating whether a posting is protected, examine whether the:
- Employee’s co-workers had access to or responded to the postings
- Posting is related to the employee’s terms and conditions of employment
- Posting elicited discussion and suggested group action.
The law concerning social media and the workplace is continually evolving.
Before disciplining or terminating an employee for posting critical comments on social media sites, consult with your attorney to make sure you are not violating the National Labor Relations Act.
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