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JOB CITES: How to interpret the NLRB’s latest take on social media

Geoff Trotier is a shareholder at Davis & Kuelthau SC, where he practices labor and employment law. He can be reached at 414.225.1484 or gtrotier@dkattorneys.com.

Geoff Trotier is a shareholder at Davis & Kuelthau SC, where he practices labor and employment law. He can be reached at 414.225.1484 or gtrotier@dkattorneys.com.

When employees get fed up at work, they increasingly turn to social media to air their gripes.

The National Labor Relations Board repeatedly has pursued employers that have disciplined employees for denigrating the workplace on Facebook or Twitter. In fact, the NLRB also has forced companies to rescind or revise policies that restrict employees from discussing workplace issues on social media platforms, arguing that the employees are exercising their right to protected concerted activity under the National Labor Relations Act.

However, the associate general counsel for the NLRB recently backed off from this hardline approach when he issued an advice memorandum finding that the termination of an employee for Facebook posts showing contempt for her employer was acceptable.

The incident

A clerical employee at Tasker Healthcare Group, d/b/a Skinsmart Dermatology, engaged in a Facebook group message with six current employees and three former employees for purposes of planning a social event.

After mentioning that a former employee may be rehired as a supervisor, the clerical employee stated that a current supervisor “tried to tell [her] something today and [she] said aren’t you the supervisor for mind and body . . . in other words back the freak off . . .”

She later stated that “They [the employer] are full of s[—] . . . They seem to be staying away from me, you know I don’t bite my [tongue] any more. F[—] . . . FIRE ME . . . Make my day.”

No one in the email conversation responded to the employee’s tirade with the exception of a statement that “It’s getting bad there [at the workplace], it’s just annoying as h[—]. It’s always some dumb s[—] going on.”

The next day, another employee showed the message string to company officials. Skinsmart terminated the clerical employee, stating that it was “obvious” that she was not interested in working at Skinsmart.

The NLRB’s take

NLRB’s AGC found that the messages were not protected concerted activity under the NLRA because they did not involve shared employee concerns regarding terms and conditions of employment. Rather, they were mere “griping” without any plan or intent for action.

In order to constitute “concerted activity,” NLRB found, the employee must seek “to initiate or to induce or prepare for group action” in order to bring “truly group complaints” to management’s attention. Concerted activity also can involve employee discussion of shared concerns prior to any specific plans to engage in group action. However, comments made solely by and on behalf of the employee are not concerted.

NLRB counsel found that the comments “bemoaned the return of a former employee” and did not share concerns about work conditions.

The employee made several comments reflecting her personal contempt for the returning coworker and her supervisor. However, these comments amounted to nothing more than “individual griping” and “boasting about how she was not afraid to say what she wished at work.”

Moreover, the co-workers did not respond to her comments in a way that indicated they shared concerns over working conditions. The only responding post made by a co-worker was ambiguous and unrelated to the inflammatory comments.

Furthermore, the complaining employee did not respond to the comment. Accordingly, the NLRB found that there was “no thread” connecting any of these comments.

The takeaway

In contrast to the NLRB’s ongoing stance protecting social media posts, comments that are mere boasting and griping are unlikely to be protected.

The AGC has indicated that the NLRB will look closely to determine if there is a connective thread between online comments and workplace conditions before finding that the employees engaged in concerted activity.

If an employee makes derogatory comments about the workplace on social media, employers should consider the following:

Was the activity concerted?

Did the complaint relate to wages, hours, benefits, reviews, or any other term or condition of the workplace?

Did the comment(s) solicit a response from co-workers?

Did any co-workers actually respond?

Did the post(s) seek information to prepare for future action?

Was the comment mere “griping”?

Did the subsequent comments discuss working conditions?

Was there a connection between comments indicating shared concerns about working conditions?

Even if a workforce is not unionized, the NLRA grants employees the right to protected concerted activity to discuss terms and conditions of the workplace. If an employee has made derogatory comments about his or her employer or the workplace, the employer should be careful not to violate the NLRA when issuing discipline.

One comment

  1. While some people say these limiting decisions by the NLRB indicates the NLRB is backpedaling from its earlier position, I see it as the Board clarifying the same position it has always maintained.

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