Kevin M. Mosher, Esq. & Chad A. Staul, Esq.
Our readers may recall from past Wessels Sherman Client Alerts that late last year a regional director for the National Labor Relations Board ("NLRB") issued a complaint against an employer that had fired an employee for posting critical remarks about the company on the social-networking site Facebook. Although that case was settled, as we predicted, the NLRB has continued to extend the scope of federal labor laws to protect employees who use social media to address issues about their workplaces. On May 9, 2011, a different region of the NLRB issued a complaint accusing an employer of terminating five employees for posting work-related comments on Facebook. What makes this new case different from the one last fall is that the Facebook postings at issue were not critical of the employer but of a co-worker!
In this recent case, the co-worker had posted on Facebook that others were not doing their fair share of the workload at his place of employment. The five charging parties were discharged after they responded to the co-worker's posting in defense of themselves and others in the workplace. Perhaps the employer in this case felt compelled to side with its gung-ho employee, or to snuff out those who would say they work hard enough despite the co-worker's criticism to the contrary, but it found itself defending a case with the NLRB.
It really should come as no surprise that the NLRB will extend the protections of the labor laws to Facebook postings or any other form of "speech," for that matter. So-called "concerted activity" protected under Section 7 of the National Labor Relations Act ("NLRA") generally includes any kind of communication that addresses terms and conditions of employment on behalf of more than one employee. In fact, a case decided by the NLRB long ago found graffiti on the wall of a workplace bathroom was protected speech where the employer had never disciplined anyone for defacing the bathroom walls until an employee did so with pro-union slogans. Similarly, the regional director in the instant case took the position that because the employees' on-line postings involved multiple employees addressing issues of productivity among their co-workers, it was protected concerted activity regardless of where the communications took place.
While the NLRB has now gone after at least two companies that allegedly disciplined employees who complained about employment-related matters to co-workers (and others) on-line, those situations involved employees who were clearly complaining about "terms and conditions of employment" protected by federal labor law - i.e. wages, work conditions, etc. More common situations that are not likely protected by federal law exist when employees are caught making posts on-line during working hours in violation of the company's working time, productivity or loafing rules, or when employees post things that go beyond mere terms and conditions of employment or cross the line of what may be considered protected speech. For example, a Facebook posting that complained of co-workers based on stereotypes about race, gender, age, etc. might be vaguely work-related but probably would be viewed by the NLRB as unprotected due to their obviously offensive and unlawfully harassing character.
The lessons of these cases are fairly straight-forward: (1) employers - especially those in non-union environments who may in the past have thought labor laws applied only in unionized workplaces - must recognize that speech protected under federal labor law as "concerted activity" can come in many forms, including on-line postings; and (2) whether such statements are truly protected or for any number of reasons fall outside of what may be considered protected, requires a careful analysis by someone knowledgeable in labor laws. Before firing someone for their comments about the workplace or anyone in the workplace, it is a good idea to consult with a Wessels Sherman attorney.
