Good news for employers wrestling with social media use policies: The NLRB seems to be retreating from its aggressive stance on classifying employee Internet postings as “protected activity” under federal labor law.
Late last year, the National Labor Relations Board filed a complaint against a Connecticut ambulance service after it fired an employee because she posted negative remarks about her supervisor on her personal Facebook page.
The grounds? The NLRB charged that the company’s Internet usage policies interfered with its employees ability to engage in “protected activities” — discussing overall workplace conditions.
The official complaint — which ended up in a settlement between the company and the employee — started a firestorm of protest over just how much control employers could exercise over what employees were saying on social media sites.
Three pro-employer decisions
Over the past several weeks, NLRB general counsel Barry Kearney has issued three memoranda of advice to regional NLRB directors — and all three all good news for employers.
Russel Cawyer, writing on the Texas Employment Law Update blog, says the guidance makes it clear that employers may discipline employees for their personal comments made in the social media world when:
- the comments are simply an individual’s gripe about an individual in management rather than an attempt to initiate or induce co-workers to engage in group action
- the comments are made to those who are not co-workers of the employee (and the employee wasn’t Facebook friends with any co-workers) and
- the posts are merely communicating with friends about happenings at work.
A quick rundown of the three advice memos:
The first involved a bartender in a restaurant in Lombard, IL. He had a “conversation” with his stepsister on Facebook; when she asked him about his night at work, he responded with a complaint that he hadn’t had a raise in five years and that he was doing waitress’s work but didn’t receive a share of their tips.
He also called the restaurant customers “rednecks” and said he hoped they choked on glass as they drove home drunk. He was fired after his employer discovered the comments.
The bartender complained to the NLRB. But the general counsel said the company was in the clear: “Although (the bartender’s) posting adressed his terms and conditions of employment, he did not discuss his Facebook posting with any of his fellow employees …
“There had been no employee meetings or any attempt to initiate group action … (and) there was no effort to take the bartender’s complaints to management …
“In this instance, (the bartender) was merely responding to a question from his stepsister about how his evening at work went.”
The second involved a customer service worker in an Oklahoma Wal-Mart. The employee complained on Facebook about a specific manager, using some crude language and profanity.
In this case, the NLRB concluded that the Facebook remarks “were an expression of an individual gripe. They contain no language suggesting the (employee) sought to initiate or induce co-workers to engage in group action.”
Finally, the board’s general counsel addressed the case of an employee of a group home for homeless people with mental problems.
The employee, working on the overnight shift, posted to her Facebook wall:
Spooky is overnight, third floor, alone in a mental institution, btw I’m not a client, not yet anyway.
Another poster responded: Then who will you tell when you hear the voices?
The employee wrote: Me, myself and I, one of us has to be right, either way we’ll just pop meds until they go away! Ya baby!
The conversation continued, ending with the comment of another friend: I think you’d look cute in a straitjacket, heh heh heh …
Again, the NLRB saw “no evidence of protected concerted activity … in fact, her Facebook posts did not even mention any terms or conditions of employment … the (employee) was merely communicating with friends about what was happening on her shift.”
