We have talked a lot about the things you should consider when making employment-related decisions based on employee use of social media. But there has not been much discussion about which employees are really at issue. Do the same considerations apply when it is your supervisor who engages in the offending social media activity? Not really.
By now you should be quite familiar with the refrain, and, in particular, the analytical framework that you should go through before taking adverse action due to your employee engaging in “protected concerted activity” under the National Labor Relations Act (“Act”). But let’s look at it from a different angle: Section 7 of the Act states that “employees” have the right to engage in protected concerted activity, and Section 8 makes it an unfair labor practice for an employer to interfere with the exercise of that right by “employees”. However, Section 2(3) of the Act expressly provides that the term “employee” does “not include . . . any individual employed as a supervisor.”
Put simply, your supervisors are not “employees” under the Act, and, thus, do not enjoy the benefits of the “protected concerted activity” provision. They could arguably be disciplined for calling the boss a “scumbag”, or otherwise railing about some workplace issue. Which begs the question – How does the Act define who is a “supervisor”? Here’s the definition:
“any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
Employer Take Away: What should you as an employer take away from this development?
In considering whether you can appropriately make an employment-related decision against an employee, at least for purposes of this whole “protected concerted activity” issue, you should ask at the threshold level whether you are dealing with a supervisor. If the subject individual is a supervisor:
On the one hand, you may have less concern about taking action in response to certain social media postings or conduct because the supervisor is not afforded the right to engage in “protected concerted activity” under the Act.
On the other hand, you may have more concern about looking at what he or she is saying and doing, and may want to take relatively quick action against the supervisor who acts inappropriately, because many times your company can be deemed strictly liable for the acts of your supervisors. The United States Supreme Court has required employers to take remedial action against discrimination and harassment in the workplace, and to have effective policies, training and practices in place to prevent future occurrences. In this regard, you must understand and take note of the double standard that applies to your supervisory personnel.