A trio of advice memoranda issued by the National Labor Relations Board’s Office of the General Counsel has offered employers a glimpse of what showing must be made to render an employee’s social media use protected by the National Labor Relation Act. The Acting General Counsel’s recent trend targeting employers’ disciplinary actions based on employees’ inappropriate use of Facebook, Twitter, and other forms of social media, has left employers on unsteady ground.

In each of the three cases discussed in the advice memoranda released this week, the Division of Advice’s Associate General Counsel, Barry Kearney, recommends dismissal of the claims that the employers violated the NLRA by unlawfully terminating or reprimanding employees based on their inappropriate Facebook activity, as there existed insufficient evidence that the employees were engaged in concerted activity.

In the first memorandum, (pdf) a bartender was fired for posting a message on his Facebook page that included offensive remarks about the restaurant’s customers as well complaints about his employer’s tipping policy.  Although he and a coworker discussed the policy, the employee neither raised the issue with management, nor did he discuss his Facebook post – which was directed to a family member with whom he did not work – with coworkers.  The advice memorandum concluded that the employer did not violate the NLRA by terminating the employee, as the Facebook post did not constitute “concerted activity” warranting NLRA protection.  “In this instance, the Charging Party was merely responding to a question from his step-sister about how his evening at work went. And this internet ‘conversation’ did not grow out of his prior conversation with a fellow bartender months earlier about the tipping policy.” Such activity, the memo concludes, does not amount to activity “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”  

Similarly, no evidence of “concerted activity” was found in the second case, (pdf) where an employee in a mental health facility engaged in a Facebook thread with a non-coworker that poked fun of the facility’s clients.  A former client saw the thread and, offended by it, reported the posting to the employer.  The employer fired the employee for the offensive posts, for raising confidentiality concerns, and for using Facebook during work time.  As with the first case, the Division of Advice found that the employer’s actions did not infringe upon any protected activity. 

In the third case, (pdf) an employee was disciplined for making profane comments on his Facebook page that criticized his employer’s management.  The remarks were directed to his friends, which included fellow employees.  Two coworkers posted comments in response to this thread, prompting the employee to make additional comments critical of the employer.  As in the other cases, the Division of Advice found that there was no evidence of “concerted activity for mutual aid or protection” in this situation, as the Facebook postings were made “solely by and on behalf of the employee himself.”  In essence, the rants amounted to “an expression of an individual gripe.  They contain no language suggesting the Charging Party sought to initiate or induce co-workers to engage in group action; rather they express only his frustration” with a particular manager over a particular situation.  Tellingly, the memorandum also explains that the coworkers’ responses to his postings merely expressed humor and emotional support and did not provide evidence “that establishes that the Charging Party’s postings were the logical outgrowth of prior group activity.” 

In each of these cases the Division of Advice concluded that the Charging Party had to show they engaged in “concerted activity,” and that merely complaining about general working conditions – especially to non-coworkers – was insufficient.  As highlighted by the third case, even some interaction among coworkers will not automatically render a Facebook post “concerted activity,” as back and forth postings amounting to “individual gripes” are not worthy of protection. 

These memoranda further outline the current Acting General Counsel’s approach to protected concerted activity within the context of social media and demonstrate that it is important for an employer to have sufficient information about the concerted nature of an employee’s activity prior to taking disciplinary action related to employee activity using social media.

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