NLRB Addresses the Question of When the NLRA Protects Employees’ Statements on Social Media

The National Labor Relations Act (NLRA) protects employees from retaliation from their employers for union organizing and related “concerted activities.” Courts are constantly reviewing the question of what constitutes protected concerted activity. The growth of social media in recent years has led to numerous disputes over the extent of NLRA protections for online statements and activity. Two recent decisions from the National Labor Relations Board (NLRB) offers the possibility of clarity about the line beyond which the NLRA does not apply. Both cases involved activity on Facebook involving harsh language directed at one or more supervisors, including words that generally get films an “R” rating. The NLRB’s two decisions make an important distinction, seeming to draw the line based on whether the employee’s activity harms the employer.

Two rules have emerged for employees regarding social media posts. The first rule is that statements or discussions via social media, when directed to other employees or intended to spotlight an employment issue, are generally considered to be concerted activity protected by the NLRA. The unsettled question for social media is how far is too far before a statement or discussion exceeds the scope of the NLRA’s protection. The second rule is that employers will continue to push this still-hazy limit, so employees should be prepared and know their rights.

In Pier Sixty, No. 02-CA-068612 (NLRB, Apr. 18, 2013), the NLRB found that an employee’s colorful statements on Facebook were protected by the NLRA. An employee at a catering company reportedly became frustrated during the course of negotiations over union representation. While the employee was working an event, he felt that a supervisor was harassing him. He stepped outside the building and posted an update to his Facebook calling the supervisor a “NASTY M———-R” and a “LOSER,” followed by a call to vote yes on the union proposal. The employee was fired soon afterwards. The NLRB held that the employee’s statements were protected, the generous use of swear words notwithstanding, because they were directly related to ongoing union organizing. It ordered the employee’s reinstatement with back pay.

The NLRB reached a different, although not necessarily inconsistent, decision in Richmond District Neighborhood Center, No. 20-CA-091748 (NLRB, Nov. 5, 2013). While Pier Sixty turned on whether the activity at issue related union organizing, the decision in this case was based on a finding that the employees’ activities harmed the employer. The employer was a nonprofit organization that offered after-school activities for teenagers. Two employees had a discussion with upper management regarding concerns over their employment. Afterwards, they had a conversation on Facebook about their frustrations, using colorful comments about refusing to follow directions from their supervisors and letting the children do whatever they wanted. The NLRB upheld their termination, finding that their discussion of going against the supervisors possibly jeopardized the employer’s funding. The employees’ online conversation was concerted activity, but was sufficiently egregious that the NLRA no longer protected it.

If you need to speak to an employment attorney in New Jersey or New York, contact the Resnick Law Group at 973-781-1204 or (646) 867-7997.

More Blog Posts:

FLSA Protections May Be Available to Undocumented Immigrant Employees in New Jersey, The New Jersey Employment Law Firm Blog, February 21, 2014
NLRB Rules that Facebook Posts Regarding Coworkers Were Protected Concerted Activity, The New Jersey Employment Law Firm Blog, February 7, 2013
NLRB Upholds Termination of Employee Over Facebook Posts, but Strikes Down Policy that Allowed the Firing, The New Jersey Employment Law Firm Blog, January 2, 2013

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