What is Protected Activity?
The National Labor Relations Act protects the rights of employees to act together to address conditions at work, with or without a union. This protection extends to certain work-related conversations conducted on social media, such as Facebook and Twitter. Employees who act together on workplace issues – by, for example, meeting with a manager to lobby for better benefits or having a group discussion about the company’s safety record – are protected from employer retaliation.
An activity is concerted only if it involves more than one employee’s concerns. An employee who complains about her own performance evaluation is not taking concerted action. But an employee who complains, after consulting with or on behalf of coworkers, that the company’s performance evaluation system unfairly penalizes employees who speak up in safety meetings is engaged in concerted action. As the National Labor Relations Board (NLRB) puts it, “personal gripes” are not protected. Even if employees are clearly acting in a concerted way, they won’t be protected if they cross the line from constructive behavior to malicious or reckless actions.
As an example of what not to do: The former employee handbook of fast-food chain Wendy's included a rule requiring authorization before workers could make comments on social media about Wendy's business, policies or employees. As part of an agreement with the NLRB, Wendy's social media policy now prohibits comments on "trade secrets and proprietary company information."
In 2010, the NLRB began receiving charges related to employer social media policies and to specific instances of discipline for Facebook postings. Following investigations, the agency found reasonable cause to believe that some policies and disciplinary actions violated federal labor law, and the NLRB Office of General Counsel issued complaints against employers alleging unlawful conduct. In other cases, investigations found that the communications were not protected and so disciplinary actions did not violate the Act.
On September 28 2012, the NLRB found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law. The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing accident at an adjacent Land Rover dealership, which did not involve fellow employees, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired. The Board ruled that the salesman was fired solely for the photos he posted of a Land Rover incident, which was not concerted activity and so was not protected.
More recently, an employee’s photos of co-workers on Facebook got her fired for violating employee handbook rules, including one against “disloyalty.” The NLRB investigated and ruled that her employer violated federal labor law by imposing “overly broad” rules on the employee that could “chill” workers from talking about their working conditions, which are protected under the law.
The NLRB has shown great interest in expanding these protections for online employee posts and comments. Here are two examples:
- An employee was having a dispute with a coworker about job performance, staffing levels, and how well the employer was serving its clients. In a Facebook post, the employee asked coworkers for their input on the issues, and several responded in online comments. They all were fired because of the online conversation. The NLRB found that they were engaged in protected concerted activity, even though some of the comments were sarcastic or included profanity, because they were discussing working conditions in advance of a meeting with management.
- While on a lunch break following a dispute with a supervisor, an employee updated her Facebook status to include an expletive and the name of the employer’s home improvement chain. Several coworkers “liked” her status. She later posted that the employer didn’t appreciate its employees; no coworkers responded to this online. She was fired for the posts. The NLRB found that she was not engaged in concerted activity because she was neither acting on behalf of other employees nor seeking their input or support to turn her complaint into a group action. Instead, the NLRB found she was airing a “personal gripe,” which was not protected.
As these cases show, employees are often protected if they are discussing employer policies or practices that apply broadly. Protection is also more likely if employees are having an online discussion to prepare to discuss issues with management. The more personal the post (for example, calling a supervisor an a- - - hole), the less likely the employee is protected. On the other hand, even if a post includes expletives and name-calling, it might still be protected if it is a complaint, responded to by other employees, about practices employees see as unfair or unwarranted.
The NLRB decisions are having some positive effects in preventing employers from stifling free speech in the name of loyalty to one’s employer. While I do not approve of negative postings about one’s co-workers or employer, I do support one’s Constitutional right to post photos and make stupid comments online.