NLRB updates reports on social media: Gripes not protected unless they are concerted; lesson is to Gripe with Friends

In August, NLRB Acting General Counsel Lafe Solomon released a summary report of National Labor Relations Board hearings involving social media. In the first report, four of the decisions found that employees were improperly fired for their online social media activity while five of those cases found no improper discharge. [I previously reported on this for the Cincinnati Bar Association – Recent NLRB Administrative Decision Affirms Board.]

The NLRB has updated the report with a new memo. As reported by the NLRB news release, the “Operations Management Memo covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.” The NLRB reports that approximately 75 cases have been forwarded to the agency thus far.

Consistent with the earlier report, the updated summary continues to make these broad outline:

  • Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
  • An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Although the report suggests that these cases are “very fact specific,” in truth the paradigm for many of these cases follows a similar pattern.

  • Step 1: An employee gets upset at work, responding by posting to Facebook, Twitter, YouTube or another social media site.
  • Step 2: Co-workers see the post. If they respond and suggest some action be taken against the employer, the posting will likely be considered concerted employee activity. If the co-workers do not respond (or make vague supporting comments like “hang in there,”) there will be no concerted activity and the employees complaint – typically expletive laden – will be unprotected.
  • Step 3: The employer will meet with the employee, identify the provision in the employment policies that identify either specific or general statement barring unprofessional behavior, and fire the employee.

At the NLRB, the first question is whether the posts are protected concerted activity within the meaning of Section 7 of the National Labor Relations Act. The conversation met the test as protected concerted activity because the posts were related to the terms and conditions of employment.

Section 7 of the Act (29 U.S.C. §157) provides that

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

The challenge for griping employees seems to be that the statement itself is not what will typically define protection in these cases. Of course, were the employee to start their social media post with “let’s get together to plan our unionizing strategy” such a post would be protected, even if ignored by fellow employees. But when an employee is swearing about one’s employer or fellow employee’s, the protection will depend on whether someone in the social circle responds with a suggestion that something affecting working conditions be done to address the problem.

For employees who post in frustration, the alternatives are to remove the post quickly or to be sure the post becomes part of a broader conversation on working conditions and employer engagement.

The second issue is the breadth with which the employment handbooks are being drafted. Policies that ban social media, ban the use of the employee’s affiliation with their employer or prohibit “inappropriate” language and behavior are too vague and overbroad to support a termination. Saving language that references the National Labor Relations Act without explaining what such reference entails, will not typically save the overly broad provisions. Instead, the policy should be more realistically tailored to prohibit the types of misconduct that are most likely to result in discipline or termination.

The NLRB press release also identifies three cases involving social media questions currently pending which will provide additional insights into this area. The cases can be found here, here, and here.