It is often difficult to discern whether the employee’s conduct online-whether it be posting pictures, writing comments about the work environment or the employer, will constitute protected concerted activity. This determination will determine what actions, if any, an employer may take against an employee when s/he as posted online content, and more broadly, the cases which follow can allow an employer to craft legally permissible policies and handbooks.
No protected concerted activity:
For example, in Karl Knauz Motors, Inc., 358 NLRB 164 (2012), a BMW automobile dealership (the Respondent) discharged a sales representative for photos and comments that he posted to his Facebook page. The first post was about a sales event for a new model and included sarcastic comments about the quality of the food (hot dogs, chips, and bottled water) being served at a marketing event for a luxury automobile.
The second incident involved an accident at an adjacent dealership in which a customer’s 13-year old child was sitting in a vehicle’s driver’s seat when the vehicle accelerated over the customer’s foot and into a pond while the child was inside. The employee posted photos and comments mocking the incident on his Facebook page. A competitor told the Respondent about the posts and the employee was discharged. The Board determined that these comments and photos which led to his termination did not amount to protected and concerted activity under the Act.
Additionally, in Tasker Healthcare Group, d/b/a Skinsmart Dermatology, the employer discharged an employee for her Facebook posts regarding work. After discussing nonwork issues with a private group of 10 current and former coworkers, the employee turned to the conversation to work and wrote: “They [the employer] are full of s**t…They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F***…FIRE ME…Make my day…”
The employer found about this posting the following day. It terminated her, stating that it was “obvious” she was no longer interested in working there and the employer was concerned about having the employee work with customers given her feelings about her job. The Board held that the employee did not engage in protected concerted activity and, therefore, the employer did not violate the Act when it terminated her employment. Although the postings referenced her work situation, her comments amounted to nothing more than individual griping rather than any shared concerns about working conditions.
Protected concerted activity:
In Design Technology Group, LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (2013), an upscale women’s clothing store terminated three employees after they created Facebook posts that related to their concerns of safety when leaving work at night in an unsafe neighborhood. Prior to creating the posts, the employees presented these concerns to their supervisor and the store’s owner. The Administrative Law Judge (ALJ) found that the owner violated Section 8(a)(1) of the National Labor Relations Act (the Act).
The Board affirmed, emphasizing that the Act gives employees the right to act together (concerted activity) to improve their working conditions. See Act, §7. Concerted activity is activity that is engaged in, with or on the authority of other employees, and not solely by the employee himself. Concerted protests of supervisory conduct are protected under Section 7 where such protested conduct affects employees’ working conditions. Here, the employees engaged in a protected concerted activity when they presented their concerns about working late in an unsafe neighborhood to their supervisor. In a conversation with the supervisor, one of the employees explained that those concerns were shared by other employees too. The Board concluded the employees’ Facebook postings were a continuation of that effort, which culminated in one of the employees bringing an employee rights handbook for the other employees to peruse.
In Hispanics United of Buffalo, Inc, 359 NLRB No. 37 (2012), five employees of a non-profit social services provider (the Respondent) posted Facebook comments in response to a co-worker’s criticism of their job performance. The co-worker frequently criticized many other employees as well. All of the posting events took place when the employees were off-duty and on their personal computers. When the co-worker brought the comments to the attention of the Respondent’s executive director, the five employee-commenters were terminated because their remarks constituted bullying and harassment of a co-worker-violating the Respondent’s “zero tolerance” policy prohibiting such conduct.
An ALJ found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by discharging the employees. According to the Board, the comments were “concerted for the ‘purpose of mutual aid or protection’ as required by Section 7.” By responding to the criticism with their own comments of protest, the employees made a common cause, and together, “their actions were concerted within the definition of [Board law] because they were undertaken with…other employees.” Consistent with other Board law, the actions were also concerted because they were “taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe that the co-worker was going to make to management.”
In Costco Wholesale Corporation, 358 NLRB No. 106 (2012), a national wholesale grocer (the Respondent) drafted rules in its employee handbook which prohibited the “unauthorized posting, distribution, removal or alteration of any material on Company property.” Additionally, a rule in the handbook prohibited the Respondent’s employees from electronically posting statements that “damage the Company…or damage any person’s reputation.”
The Board found these rules violated Section 8(a)(1) of the Act due to their overbreadth. Employees would reasonably construe them as prohibiting Section 7 activity. The Board noted that there was “nothing in the rule[s] that even arguably suggest[] that protected communications are excluded from the broad parameters.”
In determining whether the maintenance of a work rule violates Section 8(a)(1), the appropriate inquiry is whether the rule would reasonably tend to chill employees in the exercise of their Section 7 rights. If the rule explicitly restricts Section 7 rights, it is unlawful. If it does not, the violation is dependent upon a showing of one the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
Jeremy Fetty is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.
The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.