In my post, Do You Need a Social Media Policy, I mentioned that the National Labor Relations Board (NLRB) released a recent report detailing the outcome of its investigations into 14 cases involving employee use of social media and employers’ social media policies.
In four cases involving employees’ use of Facebook, the NLRB’s Division of Advice found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the NLRB found that the activity was not protected.
Two weeks ago, in Hispanics United of Buffalo, Inc. v. Ortiz, an Administrative Law Judge ruled that five employees who were terminated because of comments they made on their Facebook page should be rehired. The judge ordered the employees back to work, and held that the employees must be paid for their time off.
The Facebook conversations took place on a Saturday (outside of work hours) and involved a coworker who seemed to think her fellow employees were not doing enough to help their clients and the angry response by the affected employee followed by some crude complaints about working conditions by other employees.
The cases that have come before the NLRB, are generally decided on question of whether the social media activity of an employee is “concerted activity” that would be protected under the law and/or whether the employer’s social media policy is overly broad.
In this most recent case, the judge noted that “[e]mployees have a protected right to discuss matters affecting their employment amongst themselves.” The fact that the protected discussion is taking place in a public setting, visible to millions of non-employees for an indefinite period of time, did not affect the ultimate resolution of the case.
In the context of the NLRB’s social media decisions, factors used to determine whether the employee activity is “concerted activity” typically include:
- Whether the employee discussed the post with other employees
- Whether other employees responded to the posts
- Whether the post was intended to prompt group action
- Whether the post represented the collective concerns of employees
Individual concerns or complaints about an employer, broadly publicized on the internet, are unlikely to be deemed protected activity. However, as some of the cases illustrate, in the 24/7 workplace, the intersection of work and social network can blur.
Policies that would “reasonably tend to chill employees in the exercise of their rights” under the National Labor Relations Act, including the right to engage in protected concerted activity, are unlawful.
The lessons gleaned from recent NLRB case law indicate that companies will need to carefully balance their online reputation management goals with labor law requirements.
