Decades ago, before texting, tweeting, Facebook and other social media posting, employees used to gather around the company water cooler to discuss what was going on in the office. Aside from the inevitable gossip, often the conversations were about working terms and conditions. Common threads included salary or effectiveness of a particular manager or supervisor. Whether the employer was unionized or not, the National Labor Relations Act (“NLRA”) gave a certain amount of protection to such speech as long as it was related to working issues.
The age of the water cooler conversation has passed by and has been replaced by conversations via text message, tweeting, or social media posting. These “conversations” often include criticism of company policies, salaries, or competency of supervision. Inevitably the employer will be made aware of the communication and want to discipline or fire the employee for negative or unsupportive posting. However, just because the venue of the conversation has changed (no more water coolers or break rooms), the protections afforded employees by the NLRA are still applicable and employers need to be careful.
In order for these types of expressions to be considered protected speech, they must center on “working conditions.” That term has been broadly interpreted by the National Labor Relations Board (the Board”) to include complaints about work assignments, discipline of an employee, alleged discrimination by an employer, rates of pay, and treatment by superiors. Further, to be considered concerted activity, the social media communication must involve two or more employees. Thus, if an employee posts a concern over a social media site and another employee responds to it, agreeing and suggesting that they raise the issue with management, the protection applies. Stretching things even further, the communication can be a one way street, where it is the logical extension of earlier concerted activity calling for group action to bring a truly group complaint to the attention of management.
Consider the following scenarios: Your employees post comments critical of the employer’s treatment of employees and are looking for support to file a class action suit against the employer; or more common, a posting goes up critical of a supervisor or his/her actions. Protected activity? You bet! An employer who takes action against an employee for these types of posts is likely to run afoul of the NLRA (even if they are not unionized), and disciplinary action may be subject to challenge.
The NLRA does have some common sense to it however. Protected speech is not afforded to mere griping about one issue solely for the benefit of the person making the post. The concern must affect the entire group and call for group action. Also, although broad, the NLRA protection can be lost where an employee engages in “egregious” conduct. Unfortunately, the Board has not set out clear guidelines as to what constitutes egregious conduct, but will consider: (1) The place and (2) subject matter of the discussion, (3) the nature of the employee’s outburst, and (4) whether it was in any way provoked by the employer’s unfair labor practice (illegal conduct).
The next time an employee posts a derogatory or inflammatory comment about the company, through a social media site, consider whether it involves working terms and conditions of employment and whether it involves concerted conduct before taking any disciplinary steps. Just because an employee posts something does not automatically blanket it as protected speech.
The law firm of Bellas & Wachowski Attorneys at Law has been advising employers on all types of employment related issues for over 30 years. Contact us with any labor and employment concerns.