Dear Rita: I liked your article a couple of years ago about whether employees could be fired for what they posted on their Facebook page. Since then I keep reading about how a federal law, called the NLRA, is being used to regulate what action an employer can take when an employee posts negative comments about the employer on a private Facebook page. Can you explain what this is about? Signed, Wondering
Dear Wondering: You are truly keeping up-to-date on the most recent Facebook decisions and I will be happy to fill you in. And towards the end of this article we’ve included language for a personnel policy on social media.
NLRA, which stands for “National Labor Relations Act,” is the federal law that regulates union activity. However, a small section of the act applies to all employers, even those who are not unionized. The act also only applies to employees that could unionize, so it does not apply to management. Section 7 of the NLRA grants employees the right to engage in “protected concerted activity” which is generally defined as two or more employees working together to improve the terms and conditions of employment.
In light of what are commonly referred to as “Section 7 rights,” employers cannot prohibit employees from discussing the terms and conditions of employment, such as compensation and benefits or management policy. So, for example, if an employer tells an employee not discuss workplace issues with other staff (perhaps a recent pay raise that was deemed unfair), that instruction would violate Section 7 of the NLRA.
The National Labor Relations Board, the NLRB, is a five-member board appointed by the President of the United States to oversee enforcement of the NLRA. The Board appoints Administrative Law Judges (ALJs) to hear complaints that allege the unfair labor practice charge that an employer violated an employee’s Section 7 rights. These ALJ decisions can be appealed to the Federal Courts of Appeal if either party disagrees with the outcome.
There are two main categories of social media cases that have been filed before the NLRB. The first involves disciplinary actions based on social media postings and the second involves challenging overly broad social media policies.
Disciplinary actions based on social media posting
With the advent of social media, employees have begun posting comments about their employers on their Facebook pages. Some have gotten fired for it. Most of these cases have settled before a hearing, but in a few cases employees have been successful in challenging their dismissal as an unfair labor practice charge before the NLRB. In processing these unfair labor practice charges, the regional NLRB offices decide whether to issue a complaint based on the charge. Ultimately an ALJ decides whether the dialogue that occurred in a social media posting constitutes “protected concerted activity.” If so, then the firing is illegal and the employee can be reinstated.
A New York nonprofit — Hispanics United of Buffalo — fired five employees for posting derogatory comments. Their postings went something like this:
“Jacob [a coworker] feels that we don’t help our clients enough… I about had it! My fellow coworkers: how do u feel?”
“What the f___? Try doing my job — I have 5 programs”
“What the Hell, we don’t have a life as is. What else can we do??? Tell him to come do my f___ing job bc I don’t do enough, this is just dum”
The ALJ who heard this case ordered reinstatement and back pay for all five employees, finding that the Facebook posts constituted protected concerted activity.
[Note: Since union/management relations had its origins in the industrial workplace, NLRA case law is more tolerant of colorful language — thus the swearing in these postings — than is often allowed in a professional setting.]
Similar cases decided differently
However, recently the NLRB General Counsel has dismissed unfair labor practice charges similar to those in Hispanics United. In the first charge, an employee, after leaving work, posted two comments on his Facebook page: (1) that the clients were red necks and (2) that he had not received a raise in 5 years. The comments were directed to the employee’s relative. In this case, the charges were dismissed because the postings, not directed or discussed with co-workers, were not considered protected concerted activity. In the second charge, after an employee had a bad day at work, he vented on Facebook about his employer and his supervisor. Again, the disparaging comments were not actionable as they were not made in an effort to induce other employees to engage in group action but were considered individual gripes about the employee’s day.
These are all NLRA precedential administrative decisions and, hopefully, we will get further guidance from the federal appellate courts as to what does or does not constitute protected concerted activity in the social media context.
But, for now, ask yourself the following questions. If one or more of the answers is “yes,” your employee is most likely engaging in protected concerted activity and you should consult a labor law professional prior to taking any disciplinary action.
Did the employee discuss the posts with co-workers?
Did any co-worker respond to the post?
Was the post an outgrowth of the employee’s collective concerns?
Was the employee seeking to induce or prepare for a group action?
Was the employee organizing a group action to raise the employer’s awareness of an issue in dispute?
Be careful when restricting social media
Many nonprofits have adopted personnel policies related to social media that the NLRB has found to be overly broad as they potentially restrict the employee’s right to engage in protected concerted activity. The following social media policies have been determined to be “overbroad” and thus UNLAWFUL under the NLRA:
“Do not reveal any personal information regarding an employee of our nonprofit without their express consent.”
“Any posting that constitutes embarrassment or defamation of our nonprofit or any employee is prohibited.”
“Any posting that might damage the reputation of our nonprofit or any employee is prohibited.”
“Do not post about company business or post about anything that you would not want your supervisor to see and that would put your job in jeopardy.”
Social media policy guidelines
In contrast, these policies can be included in a social media policy:
1. If you post any comment about our nonprofit, you must clearly and conspicuously state that you are posting in your individual capacity and that the views posted are yours alone and do not represent the views of our agency.
Unless given written consent, you may not use our nonprofit’s logo on your posts.
All postings on social media must comply with our confidentiality and disclosure of proprietary information policies. If you are unsure about the confidential nature of information you are considering posting, consult with your manager or supervisor.
Do not link to the company’s website or post any official agency material on a social media site without written permission from _______.
Remember, you are responsible for what you write or present on social media. You can be sued by other employees or any individual that views your social media posts as defamatory, harassing, libelous, or creating a hostile work environment.
All agency policies that regulate off-duty conduct apply to social media activity including, but not limited to, policies related to illegal harassment, code of conduct, nondiscrimination, and protecting confidential and/or proprietary information.
Employees may not use nonprofit equipment for non-work-related activities without permission. Additionally, our policy on Use of Computers and Electronic Media apply to social media use at work, including our policy that personal use of our computers, including personal social media activities, should not interfere with your duties at work. We monitor our facilities to ensure compliance with this restriction.
This policy is not intended to interfere with the right to participate in concerted activity under the NLRA.
In the next several months we expect to see more cases as the NLRB’s approach to social media continues to develop. But all the indications are that the NLRB is heading towards a strict application of what constitutes “protected concerted activity.”
“Wondering”: we will keep you updated as case law develops.
See also in Blue Avocado:
Pamela Fyfe is an HR attorney with the Nonprofits Insurance Alliance Group where she advises nonprofits on wrongful termination, wage & hour, discrimination, sexual harassment, and other employment issues — before they are sued — to help keep them out of court. Ask Rita in HR is a frequent column in Blue Avocado made possible by the Nonprofit Insurance Alliance Group. She claims never to have slammed anyone on Facebook. 🙂