Social media protections under the NLRA are not unlimited
National Labor Relations Board (NLRB) activity over the past few years has made many employers wary of disciplining employees for work-related social media posts. Still, it’s important to remember that employee activity must be of a specific variety to be protected.
Employee activity must be in relation to terms and conditions of employment, and it must be what’s called “concerted activity” to be protected, which means that it’s conducted with — or on behalf of — other employees. Individuals who go on social media sites simply to complain individually or who aren’t addressing terms and conditions of employment typically won’t find protection under the National Labor Relations Act (NLRA).
‘Fire me … make my day’
A May 8 NLRB advice memorandum highlights the continued confusion that some people have about these issues. An employee of a dermatology office posted an online rant complete with obscenities. The employee was primarily complaining about a returning co-worker and her supervisor, but she included an open invitation addressed to her employer: “FIRE ME … Make my day.” That was precisely what the employer did.
The employee claimed that her posts on Facebook were protected by the NLRA, but the NLRB disagreed. The board pointed out that the employee’s comments expressed only individual gripes rather than employees’ collective concerns about working conditions. The comments merely reflected the employee’s personal contempt, ruled the NLRB. Additionally, the post did not pertain to shared concerns over terms and conditions of employment, even though it referenced a situation at work.
In determining whether the protections of the NLRA apply, employers must consider the details of each individual situation. In this case, had the employee more obviously expressed shared concerns over working conditions, gotten more responses regarding concerns from co-workers, or discussed a possible group action regarding such concerns, her termination likely would have been seen as a violation of the NLRA.
While there are a number of situations in which employers need to be wary of disciplining employees who take to social media to discuss their working conditions, cases like this one should reassure employers that the protection provided by the NLRA is not absolute.
Here’s the key thing to remember: Employee activity on social media sites must be concerted activity and must be related to terms and conditions of employment to be protected activity under the NLRA.
Katie Loehrke is a human resources subject matter expert and editor with J.J. Keller & Associates, Inc. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J.J. Keller’s Employment Law Today newsletter.
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