Social Media Advisor – Walking the Tightrope of Insubordination and Concerted Activity

The National Labor Relations Act (“NLRA”) is one of those employment statutes that is rife with misunderstanding in the minds of many employers who believe that the NLRA is only applicable to the unionized workforce.   In fact, while the NLRA does apply largely to the union setting, and does impose various coverage and industry thresholds, it is important to dispel this employer myth by understanding that the NLRA also applies to private, non-union employee settings as well. And, as the National Labor Relations Board (“Board”) demonstrated this past week, social media is infiltrating this area as well.

Enacted in 1935, the NLRA affords certain protections to employees, including the right to engage in “concerted activities” for their “mutual aid or protection.”   Employers can be found to have engaged in an “unfair labor practice” if they interfere with the exercise of that right.   To further hit you with legal terms, “concerted activities” consist of activities in which an employee engages with, or on the authority of, other employees, and not merely on that employee’s own behalf.

On October 27, 2010, the Board filed a complaint against American Medical Response of Connecticut Inc., after the ambulance service fired an employee for criticizing her boss on Facebook.   After an internal dispute at work, the employee apparently posted negative remarks about her boss on her Facebook page, albeit from her home computer.   That comment apparently prompted “supportive responses from her co-workers”, which then resulted in additional negative comments being posted by the employee about her boss and employment conditions.   The Board’s complaint alleged that the employee was unlawfully terminated for engaging in protected concerted activities with her co-workers.

Employer Take Away:   What should you as an employer take away from this development?

(1)        One cannot overstate the need to create appropriate social media policies that are not – as the Board suggested in last week’s complaint – overly broad and perhaps unlawful on their face.

(2)        When considering taking adverse action against an employee based on – or after obtaining knowledge about – the employee’s social media statements or conduct, you should at a minimum consider whether that employee was arguably engaging in protected activity under a statute such as the NLRA.   Was the employee engaging in activity that bears a relationship to employees’ interests as employees, as opposed to, say, political or non-employment-related interests?   Do the statements evidence the mere lashing out by, or insubordination of, a single employee based solely on his or her own opinion, or is there evidence of an intent or effect of engaging in “concerted” conduct between or among more than 1 employee, such that the activity could be for their “mutual aid or protection”?

            We have seen, and blogged about, the trend of decisions refusing to protect the privacy and substance of many social media statements and acts when they collide with paramount employer and litigation interests.   However, you as an employer still need to walk that fine line and not react in knee-jerk fashion when faced with less than glowing comments posted about you by an employee.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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