Oregon Law FirmThe NLRB Seeks to Define When Facebook Posts are Protected
Barran Liebman 
Oregon Law Firm
The National Labor Relations Board (“NLRB”) recently released three memoranda from its Division of Advice which help outline the scope of protection workers enjoy when posting complaints about work on Facebook. In each of the three cases, employees were fired or disciplined for posting comments about their jobs and/or supervisors. In each case, the employee asserted that the resulting discipline violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”), which prohibits an employer from interfering with or restraining an employee’s exercise of rights guaranteed by the NLRA.
In JT’s Porch Saloon & Eatery, Ltd. (“JT’s”), JT’s maintained an unwritten tipping policy, communicated to bartenders when they are hired, that waitresses do not share their tips with the bartenders even though the bartenders help the waitresses serve food. The employee’s sister-in-law posted a message on the employee’s wall, asking how his night at work went. The employee responded that he had not received a raise in five years and that he was doing the waitresses’ work without tips. He also called the customers “rednecks” and stated that he hoped they choked on glass as they drove home drunk. About a week later, the employee’s manager told him he would probably be fired over the post. A few weeks later, the company’s owner advised the employee via Facebook that his services were no longer required.
In Martin House, an employee engaged in a conversation on his Facebook wall while working on the overnight shift. The employee worked in a residential facility for homeless people, many of whom suffered from mental illness and substance abuse. The employee exchanged public messages with two friends about whether she was mentally ill as well as whether a client was laughing with her, at her, or at voices only she could hear. The employee was not Facebook friends with co-workers, but she was Facebook friends with one of Martin House’s former clients, who saw the posts and called Martin House to report her concern. As a result, the employee was terminated when she next reported to work. The employer expressed concerns about confidentiality and noted that the posts were made on work time.
In Wal-Mart, a customer service employee wrote on his wall “Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!” The employee’s Facebook friends included co-workers, one of whom responded to the post with a follow-up question. The employee responded by complaining about the assistant manager, calling the assistant manager names, and saying he would be talking to the store manager about the issue. One of his coworkers wrote that he should “hang in there.” A different coworker provided a printout of the postings to the store manager. The store manager then disciplined the employee with a paid suspension that precluded him from promotion for twelve months and a written warning threatening termination if the behavior continued.
In all three cases, Associate General Counsel Barry Kearney concluded that the Facebook posts were not entitled to protection because they did not rise to the level of concerted activity necessary to invoke the NLRA’s protections. The test for concerted activity is whether activity is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” While individual comments that are the logical outgrowth of concerns expressed by the employees collectively are considered concerted, comments made solely by and on behalf of the employee himself are not.
In JT’s, although the employee’s post addressed his terms and conditions of employment, it did not rise to the level of “concerted activity” because the employee did not discuss his post with his co-workers before or after posting it and none of his co-workers responded to it. In addition, the employee did not make an effort to take the complaints to management.
In Martin House, the Division of Advice pointed to the fact that the employee did not discuss the posts with fellow employees and none of her coworkers responded to the posts. More importantly, the employee was not seeking to induce group action and her posts did not mention any terms or conditions of employment.
Finally, in Wal-Mart, the Division of Advice concluded that the Facebook posts were an expression of an individual gripe because they contained no language indicating that the employee was trying to induce coworkers to engage in group action and because the coworkers’ responses suggested that they found the post humorous and as a plea for emotional support, not a request for group activity.
Employers should be careful when considering whether to discipline an employee for a job-related comment made online. Although individual gripes, name-calling, and complaints about customers and residents generally are not protected, the Division of Advice clearly suggests that Facebook posts which are the logical outgrowth of concerted activity, as well as posts that seek to induce group action, may be protected as concerted activity.
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