Employee Statements on Social Media Targeting Employment Issues Can Be Protected

By Eleanor Lipsky, Esq.

The National Labor Relations Board (“NLRB”) enforces the National Labor Relations Act (“NLRA”), which protects the rights of employees to act together to address work conditions, with or without a union.   Under the NLRA, employees 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….”[1]   The NLRA’s protection extends to certain conversations or statements employees make on social media relating to their employment.  Employers should be aware of this law before reprimanding or terminating an employee, as this can be considered retaliation against union organizing and related concerted activities.

Many recent NLRB decisions have reviewed what is considered a protected concerted activity.  In Pier Sixty, No. 02-CA-068612 (NLRB, Apr. 18, 2013), an employee made a posting on Facebook that contained harsh expletives against the employer, along with a call to vote for forming a union.   The NLRB found that the employee’s posting constituted a protected concerted activity and was directly related to on-going union organizing.  Despite the name-calling, the NLRB noted that statements will only lose protection where they are “so violent or of such serious character as to render the employee unfit for further service.”[2]

In Kroger Co. of Michigan, No. 07-CA-098566 (NLRB, Apr. 21, 2014), the Administrative Law Judge found that a general restriction on employee speech concerning rumors, speculation, personnel matters, and employer’s business plans was also prohibited under the NLRA because it was overly broad.   In contrast, a policy prohibiting “harmful gossip” about managers, but without application to a specific topic that encompasses protected subjects, could be upheld.[3]   The line between prohibiting behavior that is harmful to the business and prohibitions that discourage communication about work conditions is a fine one for employers.

As the NLRB’s involvement and commentary on social media policies continues to grow, it is worth noting that there is often a level of subjectivity in their decisions.    Regardless, in consideration of these decisions, employers should be careful to not enact social media policies that prohibit employee discussions regarding wages or other employment terms.   Any restrictive policies should be limited to necessarily addressing potential violations such as discrimination, harassment, release of trade secret, confidentiality or privacy breaches. Employers should review any existing social media policies to take account of the NLRA’s protections and also keep in mind that these NLRB decisions apply to businesses regardless of whether their employees are represented by a union or not.

[1] 29 U.S.C. § 157.

[2] Pier Sixty, No. 02-CA-068612(NLRB, Apr. 18, 2013), citing St. Margaret Mercy Healthcare Centers, 350 NLRB 203, 204-205 (2007), enf’d 519 F.3d 373 (7th Cir. 2008), quoting Dreis & Krump Mfg. v. NLRB, 544 F.2d 320, 329 (7th Cir. 1976).

[3] See Hyundai American Shipping Agency, Inc., 357 NLRB No. 80 (2011).

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