United States: Social Media And The NLRB (Part 3): Discipline And Discharge – The Breadth Of Concerted Activity

Activity is concerted if it is "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself."  This includes individual action if the employee "seeks to initiate, induce or prepare for group action" or raises "group complaints to the attention of management."  In fact, a mere "conversation may constitute concerted activity, even though it involves only a speaker and a listener," as long as "it had some relation to group action in the interest of employees," according to National Labor Relations Board (NLRB) in Meyers Industries, Inc. 

The nature and breadth of this definition has significance to social media, which frequently involves on-line conversations about work between employees who are social media "friends."

Though the scope of concerted activity is broad, businesses can sometimes rely on countervailing rules often applicable in the social media context to manage their workplaces and avoid potential liability.  For example, under the NLRB's decision in Atlantic Steel Co., "even an employee who is engaged in concerted activity can, by opprobrious conduct, lose the protection" of the National Labor Relations Act (Act).  Whether the employee has crossed the line depends on the following:

  1. The location of the conduct and statements.
  2. The subject matter of the conduct and statements.
  3. The nature of the employee's outburst.
  4. Whether the outburst was provoked by the employer's unfair labor practice.

As the NLRB also explained in Valley Hospital Medical Center, Inc., employee conduct "may be so disloyal, reckless, or maliciously untrue as to lose protection."  Thus, "a sharp, public, disparaging attack upon the quality of the company's product and its business policies, in a manner reasonably calculated to harm the company's reputation and reduce its income" is unprotected.  But "an employee's public criticism of an employer must evidence a malicious motive," and the "mere fact that statements are false, misleading or inaccurate is insufficient to demonstrate that they are maliciously untrue."  Also, "the fact that an employee's statements are hyperbolic or reflect bias does not render them unprotected."

These principles were at the heart of the decisions and advice memoranda in Hispanics United of Buffalo, Inc., Bay Sys Technologies, LLC, Wal-Mart, JT's Porch Saloon & Eatery, Ltd., Rural Metro, Monmouth Ocean Hospital Service Corp., and Martin House.  The NLRB also raised these issues in complaints filed in Karl Knauz Motors, Inc. d/b/a Knauz BMW, American Medical Response of Connecticut, Inc., and one other case discussed in the NLRB's Report of the General Counsel (Report).

 As the following discussion of these cases shows, businesses should tread very carefully when disciplining or discharging an employee for social media related conduct.  The protections given to such conduct as concerted activity are broader than typically anticipated, and the distinctions between protected and unprotected conduct can be quite difficult to discern.

In Hispanics United, an employee (Cruz-Moore) told another employee (Cole-Rivera) that Cruz-Moore intended to raise issues with the work performance of a third employee (Ortiz) to the executive director.  That evening, Cole-Rivera posted a comment to Facebook that she had "about had it!" with Cruz-Moore, and inquiring, "My fellow coworkers how do u feel?"  Several co-workers responded, making statements like "What the f.... Try doing my job," and "Tell her to come do my fucking job."  Ortiz responded as follows: "I think we should give our paychecks to our clients so they can 'pay' the rent, also we have to take them to their Dr's appts, and serve as translators (oh! We do that).  Also we can clean their houses, we can go to DSS for them and we can run all their errands and they can spend their day in the house watching tv."  Cole-Rivera replied: "Lol.  I know!  I think it is difficult for someone [not in our department] to really grasp and understand what we do.  I will give her [Cruz-Moore] that.  ...  I'm proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human :) love ya guys."

The employer discharged Cole-Rivera, Ortiz, and the other employees who posted the Facebook comments.  The NLRB and an Administrative Law Judge concluded that the terminations were unlawful because the Facebook posts were concerted activity. "Employees have a protected right to discuss matters affecting their employment amongst themselves," and "explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussions is protected."  In addition, "the activities of a single employee [i.e., Cole-Rivera] in enlisting the support of fellow employees in mutual aid and protection is as much concerted activity as is ordinary group activity."

The Facebook posts were concerted activity because the employees were "taking a first step towards taking group action to defend themselves against [another employee's] accusations."

The NLRB and Judge also addressed and rejected the employer's contention that the Facebook posts were "so opprobrious as to lose protection under the Act."  They reached this conclusion on the basis that the posts were not made at work or during working hours, were related to clearly protected activity, and did not involve any "outbursts."

In contrast to Hispanics United, the NLRB has issued several advice memoranda finding that social media conduct is not concerted activity.  For example, the employee in Wal-Mart posted the following comment to Facebook: "Wuck Falmart!  I swear if this tyranny doesn't end in this store they are about to get a wakeup call because lots are about to quit!"  Two co-worker "friends" responded as follows: "bahaha like! :)" and "What the hell happens after four that gets u so wound up???"  The employee replied: "You have no clue ... [my manager] is being a super mega puta!  Its retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting it for that price ... that's false advertisement if you don't sell it for that price ... I'm talking to [the store manager] about this shit cuz if it don't change walmart can kiss my royal white ass."  Another co-worker gave the posts to Wal-Mart, who suspended the employee for one day (which precluded him from obtaining a promotion for one year).

While "activity is concerted even if it involves only a speaker and listener," it is equally true that "mere griping is not protected." 

The employee's Facebook posts in Wal-Mart were not concerted activity because "no language suggested that [the employee] sought to initiate or induce coworkers to engage in group action," but rather he was "express[ing] only his frustration," and "none of the coworkers' Facebook responses indicated that they otherwise interpreted the [employee's] postings" as initiating a call to action.

In JT's Porch Saloon, the employee was a bartender who was upset that he had to help the wait staff serve food but did not share in their tips.  In the fall of 2010, he and another bartender discussed this policy, but did not raise the issue to management.  In February 2011, the employee posted to Facebook complaints that he "hadn't had a rise in five years and that he was doing the waitresses work without tips."  He also called the restaurant's customers "rednecks" and stated that he "hoped they choked on glass as they drove home drunk."  Upon discovering the post, the employer notified the employee – by Facebook – that he was fired.

Recognizing that "individual activities that are the 'logical outgrowth of concerns expressed by the employees collectively' are considered concerted" activity, the NLRB nonetheless found that the Facebook posts were not protected.  While the posts addressed the "terms and conditions of employment," the employee "did not discuss his Facebook posting with any of his fellow employees either before or after he wrote it, and none of his coworkers responded."  There were "no employee meetings" on the matter, no "attempt to initiate group action," and "no effort to take the bartenders' complaints" to management.  Finally, the NLRB concluded (without meaningful explanation) that the "internet 'conversation' did not grow out of [the employee's] prior conversation with a fellow bartender months earlier."

The employee in Rural Metro worked for a medical transport service, and posted comments to a U.S. Senator's Facebook page about her employer.  She complained about low wages, and stated that the first responders to a particular incident in which a person had died "didn't even know how to perform CPR!"  The NLRB concluded that the employer's discharge of the employee did not violate the Act because the post was not protected.  While the employee wanted to make the Senator "aware that she disagreed with how emergency medical services were handled," she "did not think [he] could help her employment situation in any way."  In addition, although the employee "had discussed wages with other employees in response to [the employer's] announcement of a wage cap, there was no evidence that employees had met or organized any group action or desired to raise wage issues with the employer as a group."

In Martin House, an employee at a residential facility for homeless people posted the following to Facebook while at work: "Spooky is overnight, third floor, alone in a mental institution"; and "My dear client ms 1 is cracking up at my post, I don't know if shes laughing at me, with me or at her voices, not that it matters."  The employer's discharge of the employee was lawful, because the employee "did not discuss her Facebook posts with" coworkers, "none of her coworkers responded," the employee "was not seeking to induce or prepare for group action," her posts were "not an outgrowth of the employees' collective concerns," and the "posts did not even mention any terms or conditions of employment."

The employee in Monmouth Ocean was a nurse and the union president, who used Facebook to communicate extensively about union matters.  One of her posts intimated that she and two others "might withhold care if they were personally offended by the patients."  When confronted about this, the employee asked how the employer obtained the post, and the employer told her that a coworker had provided it.  The employer suspended the employee and reported her to the state board of nursing in response to the Facebook post.  The NLRB acknowledged that "an employer's discipline of an employee based on website statements related to terms or conditions of employment" is unlawful, but concluded that the employee's Facebook post simply "was not linked to working conditions" and therefore did not implicate concerted activity.

The NLRB also used that case to address when surveillance of social media may violate the Act.  "Surveillance or creation of an impression of surveillance" is unlawful.  "An employer creates an impression of surveillance when the employee would reasonably assume from the employer's statement that [the employee's protected] activities have been placed under surveillance," such as "when an employer reveals specific information about [protected] activity that is not generally known, and does not reveal its source."  "On the other hand, no impression of surveillance is created where the employer explains that it obtained the information from other employees, particularly in the absence of evidence that the employer solicited information."  The employer in Monmouth Ocean did not engage in actual surveillance, and the NLRB found that it did not give the employee an impression of surveillance, because it informed her when she asked that "a concerned employee had produced" the Facebook post to it.

In contrast to the advice memoranda issued in the cases discussed above, the NLRB has filed complaints against several employers for disciplining or discharging employees for social media conduct, which are discussed in the NLRB's Report.  These cases are more consistent with the outcome in Hispanics United, and show the extent to which the NLRB will go to protect social media conduct, even in the face of employee misconduct.

The employee in Karl Knauz was a salesperson at a BMW dealership.  In June 2010, a customer accidentally drove a car into the pond in front of the dealership, and the employee took pictures of the incident.  Later that week, the employer held a staff meeting to discuss a sales event to introduce a new car, including that the dealership would serve hot dogs, cookies, snacks and water at the event.  A co-worker asked why better refreshments were not being served, and the salespeople discussed after the meeting among themselves their concern that the inexpensive fare would send the wrong message.  The employee then took pictures at the event.

The next week, the employee posted to Facebook the pictures of the car accident and sales event.  He annotated the pictures with comments "reflecting his critical opinion of the inexpensive food and beverages provided."  He also posted "that he was happy to see that the employer had gone all out for the important car launch by providing small bags of chips, inexpensive cookies from the warehouse club, semi-fresh fruit, and a hot dog cart where clients could get overcooked hot dogs and stale buns."  The employer discharged the employee because of these posts.

The NLRB concluded that the discharge violated the Act because the employee's Facebook post was concerted activity.  It reasoned that the posts "related to the employees' terms and conditions of employment," because "the employees worked entirely on commission [and therefore] were concerned about the impact the employer's choice of refreshments would have on sales."  The NLRB also found the employee's conduct "concerted," because he "told his coworker that he would put the photographs on Facebook," and by doing so "was vocalizing the sentiments of his coworkers and continuing the course of concerted activity that began when the salespeople raised their concerns at the staff meeting" the previous week.

The NLRB also rejected the employer's contention that the employee's conduct was so disloyal that it was unprotected.  It reasoned that the "postings were neither disparaging of the employer's product nor disloyal," because they "did not refer to the quality of the cars or the performance of the dealership" and "did not criticize the employer's management."

In American Medical, the employee asked for, but was not given, a union representative to help complete a report related to a customer complaint about her work.  Later that day, the employee posted a comment to Facebook from her home about her supervisor, which drew supportive responses from coworkers.  Specifically, the employee referred to her supervisor as a "dick" and "scumbag," and stated, "Love how the company allows a [psychiatric patient] to be a supervisor."

The NLRB concluded that the Facebook post was concerted activity because "protest of supervisory actions is protected."  It also found that the employee's conduct was not so opprobrious as to lose protection, because it "occurred outside of the workplace and during nonworking time," was made in the course of engaging in protected activity, and was "provoked by the supervisor's unlawful" conduct.  The NLRB downplayed the nature of the outburst, which it characterized as "name-calling," by reasoning that it "was not accompanied by verbal or physical threats, and the [NLRB] has found more egregious name-calling protected."

The final case discussed in the NLRB Report involved employees who discovered they owed state income tax on wages.  One of them raised the issue and it was scheduled for discussion at an upcoming management meeting.  In the meantime, a former employee posted on Facebook a criticism about owing taxes because the employer "could not even do paperwork correctly."  One employee responded to the post by clicking "like."  Another responded that she also owed taxes, and referred to one of the owners of the employer as "an asshole."

The NLRB found that the Facebook posts concerned a "term and condition of employment – the employer's administration of income tax withholdings."  The conduct was concerted because a "shared concern had been brought to the employer's attention by at least one employee," and it was scheduled to be "discussed at an upcoming management meeting," which demonstrated that the conduct "contemplated future group activity."

The NLRB also found that the posts were not so opprobrious as to lose protection, because they involved protected activity that took place "outside of the workplace" and during "nonworking time."  It recognized that the outburst was "not provoked by any unfair labor practice," but still downplayed the nature of it, reasoning that the post "was much less offensive than other behavior found protected" by the NLRB.

Because most non-unionized businesses are unfamiliar with the National Labor Relations Act, there is very real danger that they may unwittingly stumble into legal problems with the NLRB's protection of social media related conduct.  All businesses should become aware of this area of the law, review their policies to determine whether they may chill concerted activity, and adopt social media policies that comply with current requirements.  Businesses also should be very careful when disciplining or discharging employees for any social media related conduct, to ensure that the conduct does not involve concerted activity.

About Cameron G. Shilling

Cam is a partner at McLane, and leads McLane's Privacy and Data Security Group. He comes from a background of handling technology, business litigation, and employment matters, and has an active practice in New Hampshire and Massachusetts. Cam's expertise in data security includes managing security audits, preparing and implementing written data security policies, addressing day-to-day security issues, and investigating and remediating data security breaches. He has dealt with these issues under a range of state and federal laws, including the Gramm-Leach-Blilely Act, Health Insurance Portability and Accountability Act (HIPAA), Health Information Technology for Economic and Clinical Health Act (HITECH), Genetic Information Non-Discrimination Act (GINA), Children's Online Privacy Protection Act (COPPA), Fair Credit Reporting Act (FCRA), Fair and Accurate Credit Transactions Act (FACTA), a number of state data security laws. Cam's expertise in data privacy matters includes creating and implementing information security policies, advising employers with respect to workplace privacy, advising clients with respect to social media, advising companies with respect to customer and consumer privacy, and handling claims against companies for invasion of data privacy. He has dealt with these issues under a number of state and federal laws, including the Electronic Communications Privacy Act (ECPA), Stored Communications Act (SCA), Computer Fraud and Abuse Act (CFAA), Fair Trade Commissions Act (FTC Act), Massachusetts' Privacy Act, state Wiretap Laws, and a variety of other state laws. Cam graduated from the Cornell Law School in 1995, Lewis & Clark Colleged in 1992, and interned for United States District Court Judge Royce C. Lamberth in Washington, D.C. He lives in Bedford, New Hampshire, with his wife and two children, and enjoys skiing, hiking and tennis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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