Friday, August 29, 2014

Facebook Postings as Protected Employee Activity

Under section seven of the National Labor Relations Act, concerted employee activity is considered protected activity. Employers may not discipline employees for engaging in protected activity, whether or not the employees are members of a union. Nor may employers have policies in place that chill an employee from engaging in such activities. Section seven of the National Labor Relations Act states in part: employees shall have the right to self organization to form, join, or assist labor organizations…and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Traditional concerted activities include: (1) Meeting and discussing terms and conditions of employment for the purpose of organizing a labor union. (2) Taking job action to protest an unsafe working condition. (3) Speaking with the employer on behalf of one or more coworkers about working conditions. Generally, personal gripes about working conditions are not protected, unless joined with other coworker concerns.

Recently the NLRB has extended the protection of concerted activity to social media postings. See the NLRB webpage devoted to protected concerted activity ( For instance, the NLRB brought enforcement action against an employer who terminated three employees shortly after they had posted a YouTube video complaining of hazardous working conditions. The regional director for the National Labor Board determined the video was protected because the employees voiced concern about safety in the work place. The case eventually settled with the workers receiving full back pay.

On August 22, 2014, the NLRB decided the case of Triple Play Sports Bar & Grille, 361 NLRB 31 (2014). The case involved employee discussions concerning state income taxes withheld by the employer. Employees were upset that they owed more state tax then had been withheld from their pay. A former employee posted a comment on her personal Facebook page concerning the situation. Subsequently, a current employee posted a comment in response and another current employee “liked” the postings. Both employees were terminated as a direct result of their postings.

The NLRB held that the employer violated the act by terminating the two employees finding that their postings were protected concerted activity under the act. The board further held that the employer’s social media policy violated the act. The policy was found to chill the employees’ rights to engage in concerted activity. The policy stated in part “engaging in inappropriate discussions about the company management and or coworkers, the employee may be violating the law and is subject to disciplinary action up to and including termination of employment.”

In determining that the Facebook posting were protected, the NLRB said that the postings were primarily discussions among employees about working conditions. The postings did not disparage the employer’s products or services or undermine the employer’s reputation. The postings were not defamatory, rather just a negative personal opinion. The postings included the following:

“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…wtf!!!”

“I owe too.  Such an a**hole.”

Because the Illinois Labor Relations Board generally follows decisions of the National Labor Relations Board, Illinois public employers should seek guidance prior to taking disciplinary action against an employee for his or her social media postings. Additionally, employers’ social media policies should be updated to stay current with this changing area of the law. Employers who do not have a social media policy should implement a policy to provide  direction to employees concerning appropriate and inappropriate postings on social media.