November 14, 2011

Social Media Posts Can Constitute Protected Concerted Action Under Section 7 of the NLRA: Implications for Employers

A National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”) recently held that employees who posted messages on a co-worker’s Facebook page in response to criticisms from another employee were protected under Section 7 of the National Labor Relations Act (“NLRA”) as engaging in concerted activity. Hispanics United of Buffalo Inc., N.L.R.B. ALJ, No. 3-CA-27872, 9/2/11 [released 9/6/11]. Hispanics of Buffalo (“HUB”) discharged five employees after they commented on a message posted on one employee’s Facebook page in defense of criticisms of their work. Mariana Cole-Rivera, an employee of HUB, posted a comment on her personal Facebook page from her home computer stating that a coworker, Lydia Cruz, did not feel that the employees of HUB helped their clients. Cole-Rivera then asked her fellow coworkers to respond with their feelings on the issue. Six employees responded to the post from their home computers, including a member of the Board of Directors and the secretary to the HUB Director. Five of the employees, including Cole-Rivera, were fired on the basis that the Facebook posts constituted harassment in violation of HUB’s anti-harassment policy. The five employees were also told that their posts had caused Cruz to suffer a heart attack. The member of the Board of Directors and HUB Director’s secretary were not discharged. The ALJ determined that the five employees had engaged in protected concerted activity under Section 7. Section 7 of the NLRA provides both union and non-union employees of private employers with the right to self-organization, to bargain collectively, and “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection . . .” 29 U.S.C. § 157. The ALJ held that “criticism by a coworker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.” The ALJ rejected the claim that the employees forfeited protection under the NLRA; although HUB did have an anti-harassment policy in place, no evidence was provided that the employees were harassing Cruz or that Cruz had a heart attack. In fact, most of the posts did not refer to Cruz or HUB at all, but rather commented on the workload of HUB employees. The ALJ also noted that two of the employees who posted comments were not fired, and HUB made no attempts to replace the five employees who were fired. The ALJ determined that HUB committed an unfair labor practice under Section 8(a)(1) of the NLRA, and recommended that the five employees be offered reinstatement to their former positions, as well as back pay and benefits. In another case, Karl Knauz Motors, Inc., N.L.R.B. ALJ, No. 13-CA-46452, 9/28/11, the ALJ found that the employer did not violated Section 8(a)(1) where an employee engaged in both protected concerted activity and unprotected activity on Facebook, but was discharged only for the unprotected activity. The case involved a BMW salesperson, Robert Becker, who made several posts on his personal Facebook page regarding the employer. The first post included pictures of a BWM sales event in which the employer served water, chips, cookies and hot dogs to clients. Becker made sarcastic comments to the pictures indicating that the employer should have done more for such an important event. The ALJ determined that this was protected concerted activity under Section 7 on the basis that several employees had previously commented about the choice of catering for the even in management meetings, and Becker’s post was a continuation of those comments. The second post involved pictures of an accident at the employer’s Land Rover dealership. A salesperson permitted a customer’s 13 year old son to drive the Land Rover, and the boy drove over his father’s foot and crashed the vehicle into a pond. Becker took pictures of the accident and posted them on his Facebook account with flippant comments that were inconsistent with the seriousness of the accident. The ALJ determined that this post was not protected concerted activity under Section 7. Becker’s employer was advised of both Facebook posts, but claimed that Becker was discharged on the basis of the Land Rover posting only. The ALJ found the employer’s testimony to be credible, and determined that the employer did not violate Section 8(a)(1) by firing Becker for the Land Rover post alone. The Hispanics United of Buffalo and Karl Knauz Motors decisions come shortly after Acting General Counsel of the NLRB, Lafe Solomon, issued a report on social media investigations made within the last year. Several of the investigations determined that social media postings were protected as concerted activity under the NLRA. For instance, the investigations determined that the following social media postings were protected under Section 7:
  • An employee posted a negative comment about her supervisor on her Facebook page from her home computer which elicited comments from coworkers after the supervisor failed to provide the employee with union representation in preparing an incident report regarding a customer complaint about the employee’s work.
  • After at least one employee raised the issue with the employer and asked that it be placed on the agenda for an upcoming meeting, several employees “Liked” or commented on a former employee’s Facebook post which expressed dissatisfaction with the employer’s tax withholding practices.
In each of these cases, the employees posted the social media messages while they were away from work, the postings dealt with subject matter that was directly related to the employee’s work conditions, and the posting either elicited further related comments from coworkers or was the product of previous related conversations with coworkers. Profane language or remarks in the postings were not so offensive or abusive that the employees would forfeit their rights under the NLRA. In addition to evaluating whether social media posts were protected under Section 7, the Acting General Counsel’s report also found that certain language in employer’s social media and/or internet policies interfered with employees’ Section 7 rights. For instance, language that generally prohibited employees from making disparaging remarks or engaging in inappropriate discussions about the employer or coworkers, or from using the employer’s image or logo in social media posts, was found to be overly broad and in violation of Section 8(a)(1) when there was no limiting language regarding how the policy applied to employee’s Section 7 rights. These ALJ decisions and the NLRB’s report are particularly relevant to employers in light of the new NLRA notification rule, which will require all employers subject to the NLRA to post notices informing employees of their rights under the NLRA, including the right to engage in concerted activity under Section 7. Employers can find more information on the NLRA notification rule here. Few non-union employees are likely aware of their rights under the NLRA. After the notification rule takes effect on January 31, 2012, more employees will assert their rights under Section 7 to engage in social media discussions which may violate existing employer social media or Internet policies. Interfering with an employee’s Section 7 rights could result in an unfair labor practice charge, and with the law in this area in its infancy, employers cannot simply rely on these decisions and the NLRB report. A plethora of new issues will arise involving social media postings, such as whether employers who view or comment on these social media posts are guilty of unlawful surveillance of employee concerted activity. With January 31, 2012 quickly approaching, employers need to be proactive in their preparation for the implementation of the NLRA notification rule in light of these social media decisions. Employers should update their training to ensure they respond appropriately to employees’ work-related social media postings and revise their social media and internet policies to make sure they are consistent with Section 7. For additional information on how to prepare your business for the implementation of the NLRA notification rule, or for information on updating your training or social media or internet policy, please contact James J. McGovern, III, Esq., Director of the Labor Law Practice Group, at 973-535-7122.