Doing An About Face(book) At The NLRB?

Previous posts have focused on recent complaints filed by the National Labor Relations Board (“NLRB”) that allege that employers have violated the “concerted activity” rights of employees due to employment actions taken after social networking posts.   Now, it seems as if the NLRB has done an about-face (or a few of them) after its Division of Advice has issued memoranda in three separate cases dismissing charges filed by terminated and disciplined employees.   Or has it?

In In re: JT’s Porch Saloon & Eatery, Ltd., a bartender engaged in a Facebook conversation with his step-sister, in which he mentioned that he had not had a raise in years, was working without tips, and that his customers were “rednecks” who he hoped “choked on glass as they drove home drunk.”    The employee’s manager fired him because of his post, yet the NLRB dismissed a charge filed by the employee on the ground that the employee “did not engage in any concerted activity.”

In In re: Martin House, an employee of a non-profit homeless shelter engaged in a Facebook conversation with a friend that made various references (some derogatory) about the shelter’s mentally disabled clients.   A former client who was a “friend” of the employee, saw the post and contacted the employer, who immediately terminated the employee.   The employee filed a charge, which was dismissed by the NLRB on the basis that there was no “concerted activity” in that case either.

And, in In re: Wal-Mart, a customer service employee posted “Wuck Falmart!” on Facebook, among other comments that detailed a particular dispute that the employee had with his assistant manager.   The employee was called into the office by the store manager, who verbally reprimanded the employee for the post, and prepared a discipline report.   The employee filed a charge with the NLRB, which was also dismissed on the ground that there was “insufficient evidence” that the employee “engaged in concerted activity.”

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

Earlier complaints filed against employers by the NLRB itself seemed to reflect a restrictive approach to an employer’s ability to rely on social media activity for adverse employment decisions.  While the advice memoranda issued in these three cases appear facially incongruous with those prior Board actions, several standards have begun to emerge on which you may begin to rely when determining whether an employment decision based on social media activity violates that employee’s right to engage in “concerted activity”.   Thus, it is not likely considered “concerted activity” if:

1.         the employee is not posting a comment to coworkers, and coworkers do not respond to the post.

2.         the employee is not attempting to initiate group action with coworkers.

3.         the employee is not discussing the terms and conditions of the work environment generally, but is instead making general gripes about an individualized dispute that he or she had with a supervisor.

These standards still seem to be very much fact-sensitive, and, I believe, have their own inherent problems from an application and proof standpoint.   However, the more the NLRB continues to speak on this issue, the more likely it is that your company will have some guidelines upon which to rely.

About Michael Schmidt

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.