Section 7 of the National Labor Relations Act (“NLRA”) provides that “[e]mployees 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. . . .” (emphasis added). The expansion of social media platforms such as Facebook and Twitter has provided today’s workforce with simple means to voice displeasure with their employers. However, as more and more employees are finding out, federal labor laws are not evolving as quickly as social media sites. This has created uncertainty as to the scope of protection afforded to social media activity under federal labor laws.
Recent decisions by the National Labor Relations Board (“NLRB”) provide some guidance on this issue. For instance, comments posted on social media sites are generally protected under Section 7 of the NLRA if they are in relation to broader group activity among employees. In contrast, mere individual gripes or expressions of displeasure do not constitute protected activity. This distinction, while vital to an employee’s wrongful discharge claim, is oftentimes difficult to understand.
As discussed in the Meyers cases, and specifically Meyers Industries (Meyers I), 268 NLRB 493 (1984), and Meyers Industries (Meyers II), 281 NLRB 882 (1986), the test for “concerted activity” under Section 7 of the NLRA is whether the activity is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” The question becomes what conduct is “engaged in with other employees” versus “solely by and on behalf of the employee himself.” A review of recent cases is helpful.
In our first case, an employee began complaining to a coworker that the employee’s clients did not want to seek services from the employer. The employee then started sending a constant barrage of text messages to other coworkers in which she criticized the work quality of the employer’s employees. One of the coworkers finally had enough, and another coworker suggested that she meet with the employer’s executive director to discuss the employee’s conduct. To prepare for the meeting, the coworker posted on Facebook that the employee felt that her coworkers did not help the employer’ clients enough. The coworker then asked other coworkers how they felt about it. Upon review, the NLRB determined that the Facebook posts were a “textbook example of concerted activity…The discussion was initiated by the one coworker in an appeal to her coworkers for assistance.”
In another case, an employee was asked by her supervisor to prepare an incident report concerning a customer complaint about her own work. The employee asked for a union representative to be present while she prepared the report, but the employer did not provide a union representative. Later that day, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her coworkers and led to further negative comments about the supervisor from the employee. The NLRB determined that the employee’s conduct was protected under Section 7 of the NLRA. In addition, the employee did not lose the NLRA’s protection by referring to her supervisor as a “scumbag.” To be sure, “the Facebook postings did not interrupt the work of any employee because they occurred outside the workplace and during nonworking time.”
In contrast, the NLRB found that an employee was not engaged in protected concerted activity when he was discharged for posting a message on his Facebook page that referenced his employer’s tipping policy in response to a question from a non-employee. In that case, the employee worked as a bartender at a restaurant. The employer maintained a policy that waitresses did not share their tips with bartenders even though the bartenders helped the waitresses serve food. At some point, the employee had a conversation on Facebook with a relative, during which the employee complained that he had not had a raise in years and that he was doing the waitresses’ work without tips. Importantly, the employee did not discuss his post with any of his coworkers, and none of them responded to it. In finding that the Facebook post did not constitute concerted activity, the NLRB noted that “although the employee’s Facebook posting addressed his terms and conditions of employment, he did not discuss the posting with his coworkers, and…there had been no employee meetings or any attempt to initiate group action concerning the tipping policy or raises.”
Similarly, the NLRB found insufficient evidence that an employee engaged in concerted activity when he posted profane comments on Facebook that were critical of his employer’s management. In that case, after an interaction with an assistant manager, the employee posted a comment complaining about the “tyranny” at the store and suggested that numerous employees were about to quit. Several coworkers responded to the employee’s comment, expressing emotional support and asking why the employee was so wound up. Three coworkers made supportive comments. The NLRB concluded that the Facebook postings were merely an expression of individual gripe, and did not constitute concerted activity. Indeed, “they contained no language suggesting that the employee sought to initiate or induce coworkers to engage in group action; rather they expressed only his frustration regarding his individual dispute with the assistant manager. . . .”
While recent NLRB decisions provide some clarification as to what constitutes “concerted activity” under Section 7 of the NLRA, the line between protected activity and wrongful conduct is still blurry. However, one this is for certain: social media posts must be in relation to a group activity among employees to fall with Section 7 protection.