By Jonathan K. Driggs, Attorney at Law
Last month, I discussed how the National Labor Relations Board (NLRB)—which enforces the National Labor Relations Act (NLRA)—has issued controversial decisions over the past few years finding that certain types of statements made by employees on social media websites are “concerted activities,” thus protecting employees from termination and other actions. As discussed last month, to be protected, employees’ comments on social media must meet the following two conditions (broadly defined in favor of the employee):
Now, let’s take a quick look at some NLRB decisions to get a feel for what they’re thinking (and you’ll notice that some cases go for the employee and some go for the employer):
A paramedic vented on Facebook (FB) about her boss after he allegedly denied her the opportunity to seek help from her union before she responded to him about a customer compliant. Among other things she referred to him as a “scumbag” and a “mental patient.” Other employees commented on her posts.
NLRB Holding: Concerted activity—her firing violated NLRA.
Takeaways: Her references to her union and the comments made by her coworkers on FB helped her case. Remember, just because the employee is “rude and crude” doesn’t mean it isn’t a concerted activity. The NLRB is pretty tolerant of “rude and crude,” within certain limits.
A tour bus driver complained on FB about his working conditions (lack of health insurance, minimal PTO, unsafe buses) and praised a competitor as a “workers’ paradise.” His comments included praise for the benefits of labor unions. There is no evidence that his coworkers had access to his FB page.
Holding: Concerted activity—his firing violated NLRA.
Takeaways: The lack of involvement with other employees (prong #2 above) makes this a curious case, but shows how far the NLRB is willing to stretch things (I don’t think they could bear to not help him out since his comments were so union-oriented).
An employee sought assistance on FB from four coworkers to respond to criticism from another employee. She wrote that this employee felt that “we don’t help our customers enough” and posted, “my fellow coworkers, how do you feel?” This resulted in a vigorous discussion on FB (which apparently got pretty intense). Some of the coworkers discussed concerns with employer staffing practices. Five employees were fired for violating bullying/harassment policies (regarding how they responded to the employee who originally made the criticism).
Holding: concerted activity—the firing of employees violated the NLRA.
Takeaways: Her reaching out to her coworkers to get their input is a strong potential sign of a concerted activity (as is discussing working conditions such as staffing practices).
A BMW dealership employee posts picture on FB of a car driven into a pond at a sales event by another employee’s 13 year old son. The employee openly mocked the dealership over it (as well as for the cheap hot dogs they served at the event).
Holding: Not a concerted activity—his firing did not violate NLRA.
Takeaways: A good example of individual griping not related to working conditions (despite the negative impact that cheap hot dogs must have on any workplace!) Last of all (add this to your list of things not to do): NEVER let your 13 year old son drive an expensive German-built automobile owned by your employer!
An employee was responsible to care for homeless people with mental health issues. While working a graveyard shift she conversed with two friends on FB. She commented on how “spooky” it was being alone at night in a mental institution and made unprofessional comments about the mentally disabled clients. A former client of employer saw the postings and complained to employer.
Holding: Not a concerted activity—her firing did not violate the NLRA.
Takeaways: Statements made about third parties (customers, clients, etc.) often aren’t protected. Worse yet, revealing information about medical patients clearly doesn’t fly, even with the NLRB.
A construction contractor fired five employees after several of them appeared in a YouTube video complaining of hazardous working conditions. As the NLRB hearing opened, the case settled, with the workers receiving full backpay.
Takeaways: While there was no NLRB decision on this case, it was clearly heading in favor of the employees. This is a good example about how it’s not always about FB, but social media sites such as YouTube could be involved. Could one of your employees walk through your facility and make a movie about it? This could easily happen.
At this point, NLRB decisions are still inconsistent and at times confusing (not to mention frustrating). Nevertheless, hopefully the cases mentioned above give a general sense for what is protected and what is not. This area of the law will continue to develop over the coming years, but in the meantime, be sure to use caution when dealing with employee-related social media issues, lest you become the next test case!
This article should not be construed as legal advice. Copyright ©2014 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com
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