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Regional offices of the National Labor Relations Board (NLRB) have recently filed complaints against employers who fired employees for complaining about worksite conditions, or their supervisors, on their personal Facebook pages.  The NLRB’s recent actions should send up "red flags" to employers because the complaints have been filed against both union and non-union employers.  The NLRB’s Buffalo, New York regional office filed a complaint alleging that an employer unlawfully discharged five employees after they criticized working conditions, including workload and staffing issues, in their Facebook postings.  The five employees involved in the online discussion were fired after the employer learned of the posts on grounds that their comments constituted harassment of the employee originally mentioned in the post.  The NLRB’s Buffalo office argues that the Facebook discussion is protected concerted activity within the meaning of Section 7 of the National Labor Relations Act (NLRA) because it involved a conversation among co-workers about their terms and conditions of employment.

The NLRB’s Hartford, Connecticut regional office also filed suit alleging that an employer illegally terminated an employee who posted negative remarks about her supervisor on her Facebook page.  The complaint alleged that the company illegally terminated and illegally denied union representation to the employee during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy.  The employee went on her personal Facebook page on her home computer and posted a negative remark about her supervisor, which drew supportive responses from co-workers and led to more negative comments by the employee about her supervisor.  The employer terminated the employee saying she had violated the company’s internet policies with her postings.  The NLRB Hartford, Connecticut regional office found that the employee’s Facebook postings were a "protected concerted activity" and that the employer’s blogging and internet posting policies contained "unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company" and another that "prohibited employees from depicting the company in any way over the internet without company permission".  According to the Hartford, Connecticut regional office, such provisions interfere with employees’ rights to engage in protected concerted activity.

There is no question that the NLRA may be triggered by policies such as confidentiality and use of e-mail and other electronic communication for personal, commercial, and non-related reasons such as Facebook and other social network blogging sites.  Private sector employers should consider not only whether their employee handbooks and policies comply with the NLRA, but also whether the manner in which these policies are enforced implicates the NLRA.  These recent complaints by the NLRB, the federal body that administers the NLRA, make it clear just how important it can be for employer policies to comply with the NLRA.  Not doing so may prove to be a very costly oversight.

Section 7 of the NLRA provides: "Employees shall have the right to self-organization, to form, join, or assist a labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining, for other mutual aid and protection."  In addition to being guaranteed the right to join a union and engage in union activity, Section 7 guarantees employees the right to engage in concerted activities for their mutual aid and protection.  Section 7 rights are afforded equally to union and non-union employees.  As a result, an employer who disciplines or otherwise interferes with an employee for engaging in Section 7 activity may be committing an unfair labor practice.

The U.S. Court of Appeals for the District of Columbia enforced an NLRB order invalidating an employer’s confidentiality policy which stated: "We honor confidentiality.  We recognize and protect the confidentiality of any information concerning the company, its business plans, its partners, new business efforts, customers, accounting and financial matters."  The court found this provision of the employee handbook violated the NLRA because employees could have reasonably determined that the policy prohibited them from discussing the terms and conditions of their employment with other employees or outside parties such as a labor organization.  The NLRB took issue with use of the word "partners" in the policy as the employer referred to its employees as partners.  The policy, which had never been enforced by the employer, was found to be unlawful because its maintenance might chill Section 7 activity.  Central to the NLRB’s inquiry that have invalidated HR policies was whether the policy at issue could be construed by employees as being a prohibition on the exercise of the protected Section 7 rights.

CONCERTED ACTIVITY

Non-union employees are entitled to the protections of the NLRA when they engage in concerted activities.  An employee must be engaged in activities with another employee or must be acting on the authority of other employees to be engaged in concerted activities.  An employee need not be designated as a representative of the other employees.  Rather, an employee who is acting merely with the purpose of furthering group goals is engaged in concerted activities.  These activities include the right of employees to communicate with one another over the terms and conditions of employment, including matters related to compensation.  A policy will run afoul of the NLRA where it prohibits employees from discussing their wages with one another.  A confidentiality policy that prohibited employees from discussing salary information and pay increases has been found to violate the NLRA.  Concerted activities could also involve an employee merely speaking on behalf of other employees regarding the terms and conditions of employment or regarding supervisors.  The 6th U.S. Circuit Court of Appeals concluded that an employee was engaged in concerted activities when she talked with management about the wage-related problems of other employees.  Protests by an employee on behalf of other employees concerning wages, hours, working conditions as well as the presentation of job-related grievances have been held to be concerted activities protected by the NLRA.

MUTUAL AID AND PROTECTION

In order for concerted activities to be protected under Section 7, it must also be for the mutual aid and protection of other employees.  Activity for mutual aid and protection embraces a notion that employees are working for a common cause, and is often referenced to as protected concerted activity.  The key for determining whether activities are for the mutual aid and protection of other employees is to consider if others might be affected as a result of the activities in question.

INTERFERENCE WITH SECTION 7 RIGHTS

Section 8(a) of the NLRA describes what constitutes an unfair labor practice.  Section 8(a)(1) provides that a non-union or union employer commits an unfair labor practice when it interferes with, restrains or coerces employees in the exercise of their rights to organize, bargain collectively, and engage in other concerted activities for their mutual aid and protection.  This section has been broadly applied to non-union workforces so as to encompass a myriad of actions by non-union employers such as: terminating a group of employees who walked off a job with complaints about their supervisor; disciplining an employee for questioning the president of a company who was discussing with employees a change in the company’s break policy; terminating an employee who placed a call to the Department of Labor to inquire about whether employees are entitled to holiday pay; terminating a salesman for being an outspoken critic against special two-hour meetings that sales personnel were required to attend without compensation before a store opened; disciplining a sales representative for complaining about a change in a commission plan presented by a vice president during a meeting with all sales representatives; and, disciplining an employee who spoke to other employees about her compensation, in violation of the employer’s written policy prohibiting such communications.  As noted above, the NLRB is now focusing on adverse employment actions against employees for Facebook and other social networking blogging actions.

While it is uncertain how the NLRB and the courts will eventually decide these cases, the fact that the complaints were issued sends a clear message to employers who maintain and enforce a multitude of policies related to monitoring or regulating employee conduct.  The NLRB’s actions clearly signal that it is drawing a line in the sand and that employer restrictions may not be so broad as to prohibit all employee discussion of the company under social media pages.  Employers, regardless of whether or not they have employees represented by a union, should examine their policies, particularly those pertaining to social networking, blogging, bulletin boards, off-duty conduct and confidentiality.  This examination will help ensure that company policies are limited to employee conduct the company legitimately may restrict, such as harassment or disclosure of confidential information.