The explosion of the Internet has provided companies with a new set of employment-related issues to worry about: harassment via Facebook, trade secret theft by blog and anti-employer rants on YouTube have all become regular topics at employment law seminars. Just as employers are learning how to deal with these problems, a new issue is coming to the fore: whether certain Internet postings may constitute protected, concerted activity under the National Labor Relations Act (NLRA).
Under the NLRA, employees have a right to “engage in concerted activity for the purpose of collective bargaining or for other mutual aid and protection.” To be protected, the activity must be undertaken by two or more employees, or by one employee with the authority of others, and it must relate to the terms and conditions of employment. Activity that is otherwise protected may lose its protection if it is overly disruptive and “opprobrious.”
While this concept has not yet resulted in a significant number of court decisions, it has become a hot issue at the administrative level, and the results for employers have been mixed, as the three following examples demonstrate:
1. In one case before the National Labor Relations Board (NLRB), an employee at a BMW dealership was fired after publishing Facebook posts ridiculing the dealership for serving hot dogs during a sales event rather than more upscale foods. He also shared negative posts about an accident at a Land Rover dealership owned by the same company.
The NLRB found that the posts about cheap food were concerted activity because they arose from discussions among several employees, and were protected activity because the hot dog cart could have “turned off” customers and thereby impacted the employee’s commissions. In contrast, the NLRB ruled that the Land Rover posts were not protected because they did not arise from any concerted activity and had no connection to the terms and conditions of the person’s employment.
2. In another case, five social services employees were fired for posting Facebook comments angrily responding to criticism of their work. The NLRB ruled that their posts were protected, and ordered their reinstatement with full back pay. According to the NRLB, the employees’ posts were connected to the terms and conditions of their employment because they involved their performance and were concerted because they constituted “a first step toward taking group action.”
3. In a third case, the Office of General Counsel addressed, at the NLRB’s request, the termination of a paramedic who had posted comments on Facebook criticizing her supervisor and calling him names. The Office of General Counsel concluded, without any analysis, that the posts were protected under the NLRA.
In each of these cases, the tribunal also rejected the argument that the activities lost their protection because they were too opprobrious. In the BMW case, the NLRB ruled that the sarcastic nature of the anti-hot dog posts “did not exceed permissible bounds.” In the social services case, the NLRB ruled that the posts did not constitute “outbursts” or harassment as defined by company policy. Finally, in the paramedics’ case, the Office of the General Counsel said that the posts were not disruptive because they occurred after hours, and that mere name-calling did not cause activity to lose its protection.
To be sure, many other decisions have rejected employees’ arguments that their social media posts were protected, but these cases still raise difficult issues for an employer. For example, if a post is clearly protected under the NLRA, but includes inappropriate sexual references, what should the employer do? By enforcing its harassment policy and disciplining the offending employee, the employer may risk an NLRA charge, but by doing nothing, the employer may be accused of failing to take prompt remedial action to curb a sexually hostile work environment.
One thing is certain in this constantly evolving area of law: although they might not “like” it, employers must exercise caution before taking adverse action in response to employees’ social media posts or other use of the Internet.