Since the advent of social networking websites like Facebook, employers have struggled to determine when it is appropriate to discipline an employee who engages in misconduct through social media. Fortunately, the NLRB offered significant guidance on this issue in three Advice Memorandums submitted in July 2011. These Memorandums seem to indicate an employer may discipline an employee for comments made on Facebook without violating the National Labor Relations Act (NLRA) if:
1. The employee’s work complaints on Facebook were made only to family or friends; or
2. The employee’s complaints expressed only an individual gripe with the employer, rather than concerns expressed by employees collectively.
The first Advice Memorandum.PDF concerned an employee who worked at a residential facility for homeless individuals who suffered from substance abuse and mental illnesses. The employee posted demeaning comments about some of those individuals on her Facebook wall and was subsequently terminated. None of the employee’s coworkers were her Facebook “friends,” and only personal friends responded to the relevant posts.
The General Counsel determined that these Facebook posts were not protected because they: (1) were merely communications to friends about work; (2) did not relate to the terms and conditions of the employee’s employment; (3) were not discussed with the employee’s coworkers and no coworkers responded to the posts; and (4) were not an outgrowth of collective concerns and the employee was not seeking to induce collective action. The employer, therefore, was permitted under the NLRA to discipline that employee as it saw fit since those posts did not constitute protected activity.
The second Advice Memorandum.PDF dealt with a bartender who complained to his step-sister through Facebook about not receiving a raise over the past five years and his employer’s policy that prohibited him from receiving a share of waiters’ tips, even though the bartender helped serve food. He also posted insults regarding the employer’s clientele. The bartender had a similar conversation about the unwritten tipping policy with a fellow bartender several months prior to the Facebook posts, but neither employee raised the issue with management. Upon learning of the bartender’s Facebook posts, the employer terminated his employment.
The General Counsel reasoned that the employer bore no obligation to reverse the bartender’s termination because: (1) the Facebook communication was not addressed to the bartender’s coworkers and he did not discuss the post with his coworkers; (2) there had been no employee meeting nor any attempt to initiate group action with regard to raises or the unwritten tipping policy; and (3) no effort had been made to take the bartender’s complaints to management. It should be noted that the General Counsel reached this determination despite fully acknowledging that the communication addressed the terms and conditions of the bartender’s employment, and that the tipping policy had been the subject of conversation between the bartender and the coworker. The General Counsel, nevertheless, concluded the Facebook posts did not grow out of earlier conversation with a coworker.
The third Advice Memorandum.PDF involved an employee who posted the following language on Facebook:
I swear if this tyranny doesn’t end in this store, they are about to get a wakeup call because lots are about to quit.
. . . .
[The Assistant Manager] is being a super mega puta! Its [sic] retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting [sic] it for that price … that’s false advertisement if you don’t sell it for that price … I’m talking to [the Store Manager] about this shit because if it don’t [sic] change [the Employer] can kiss my royal white ass.
Obviously these posts addressed the terms and conditions of the employee’s employment. Further, unlike the other employees addressed above, this employee’s Facebook posts were communicated to his coworkers, earning responses on the website such as, “hang in there,” “bahaha like! :),” and “What the hell happens after four that gets u so wound up??? Lol.”
The General Counsel concluded that even though these posts addressed the employee’s terms and conditions of employment and were directed to coworkers on Facebook, they did not constitute a protected activity. The General Counsel determined that the Facebook post expressed only an individual gripe with the employer, and that the employee was merely expressing his personal “frustration regarding his individual dispute with the Assistant Manager over mispriced or misplaced sale items.” Thus, there was no outgrowth of collective concerns and the employee was not seeking to induce collective action. As to the post being directed at coworkers, the General Counsel reasoned that the coworker’s responses did not convert the posts to collective action because their joking and sympathetic responses demonstrated their belief the employee was only speaking on his own behalf.
An employee’s conduct is concerted only when he/she: (1) acts with or on the authority of other employees; (2) seeks to initiate, induce or prepare for group action; or (3) brings group complaints to the attention of management. Based on the above-mentioned Advice Memorandums, it appears that social media communications that are solely on the employee’s behalf (e.g., posts that are not communicated to coworkers or management) or communications that are individual in subject matter (e.g., posts that may be communicated to coworkers but concern only an individual gripe) are not concerted activities and, therefore, are not protected under the NLRA.