NLRA–NLRB: Protected Concerted Activity and the Use of Social Media

As noted in a previous GMK Alert, employers with a non-unionized workforce generally believe that they need not be concerned with issues involving the National Labor Relations Act (NLRA) and its enforcement agency, the National Labor Relations Board (NLRB). However, the increased use of social media by employees to complain about their employers or raise issues concerning the workplace has resulted in a number of cases before the NLRB filed by employees who are not represented by a union.

Under the NLRA, employers cannot discriminate against or otherwise interfere with an employee’s right to engage in protected concerted activity – basically engaging in conduct with co-workers, or on behalf of co-workers, to improve wages, hours or working conditions. Discussions among employees on these matters will generally fall within this definition. Such conduct is now taking place more often through social media such as Facebook pages, Twitter accounts and YouTube postings.

In August the NLRB’s Acting General Counsel issued a report on these types of cases as guidance to practitioners and human resource professionals. In addition, some recent decisions by NLRB Administrative Law Judges also shed light on how the NLRB views the use of social media by employees and the employers’ response to such use. These cases and report suggest that there will be a finding that an employee has engaged in protected concerted activity when there are discussions with co-workers (such as a Facebook posting and responses) or comments by a single employee that are intended to initiate or induce group action that concerns wages, hours or working conditions, even if the connection to such is minimal. Therefore, any action taken against an employee for engaging in such conduct would presumably be an unfair labor practice. [If the employee comments or postings are “opprobrious” (such as outrageous outbursts, threatening language, or causing a significant work interruption) the employee can lose the Act’s protection. However, this exception is narrowly construed.] Certain inappropriate or offensive conduct on a social media site has been found not to constitute protected concerted activity when it did not relate to terms or conditions of employment or did not seek to involve other employees in employment-related issues. Thus, postings or tweets that are general complaints made to the public or to family and friends may result in lawful action by the employer against the employee.

Furthermore, handbook language that restricts activity protected by the NLRA (or is a response to union activity) can also violate the Act, whether the restriction is explicit or may reasonably be construed to have such an effect. Language that broadly prohibits disrespectful or disparaging comments or other “offensive conduct” would presumably be unlawful. Although certain language might appear to be acceptable (e.g., prohibiting social media use that disregarded the privacy rights of another individual; or prohibiting language that might damage the reputation or goodwill of the employer), the NLRB has stated that, because such language could restrict concerted activity concerning terms and conditions of employment, the language was overbroad.

What this means for you

It is important for all employers to have a policy that restricts personal use of social media during working hours and/or using the employer’s equipment; prohibits harassment or discrimination through the use of social media; and protects the employer’s trade secrets and other confidential information. However, it is also important for the employer to make sure that its policy and practice in this area respect the rights of the employees to engage in protected concerted activity. Language that does not allow employees to discuss among themselves or with others their wages, hours or working conditions, or prohibits any criticism of management or the company should not be used.

For assistance with developing or implementing an appropriate social media policy please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or jflaherty@gmklaw.com.