Careful on employee discipline over complaining about work online

Be Careful When Disciplining Employees for Complaining About Work on Social Media!
By Natalie Pattison
Barran Law

Private sector employers take note: an employee’s social media post complaining about work may be entitled to protections under the National Labor Relations Act (“NLRA”). This is true regardless of whether the private sector workplace is unionized or not, because under the NLRA, private sector employers are restricted from disciplining an employee if the post involves “protected concerted activity” absent a few limited exceptions.

The NLRA protects employees’ rights to participate in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Employers may not interfere with this right by, for example, disciplining an employee for conduct that constitutes protected concerted activity.

Employees commonly engage in protected concerted activity when they discuss wages, benefits, or other working conditions with one or more coworkers. However, even a single employee may engage in protected concerted activity if the employee is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. Protection also extends to communications between employees that do not directly call for group action if they involve “inherently concerted” discussions about vital categories of workplace life such as wages, scheduling, or job security.

The National Labor Relations Board (“NLRB”) Office of the General Counsel recently released an advice memo (Johns Creek Surgery 10-CA-270348) about an employee who was terminated after complaining about her employer in a Facebook post. (Advice Memos are useful indicia of how the General Counsel’s office may choose to litigate unfair labor practices and other proceedings against employers before the Board.) The memo advised that the employer likely violated the NLRA by terminating the employee. A single Facebook post by one employee blaming employee attrition on bad management practices was protected concerted activity because the Facebook post elicited support from coworkers over scheduling, management, and employee attrition—issues that had been topics of concern for employees. The Facebook post was also protected to the extent it discussed workplace topics, such as job security, that are “inherently concerted.”

Although not all work-related comments made online are protected concerted activity, the memo clearly indicates that posts eliciting support from coworkers about a working condition, as well as communications that involve “inherently concerted” discussions, likely rise to the level of protected concerted activity.

It is important for all private sector employers to know what constitutes protected concerted activity because the NLRA’s protections apply even when no union is involved and no collective bargaining is contemplated by the employees. Before disciplining an employee for work-related social media posts, employers should evaluate whether the employee’s post may be protected concerted activity and consult their labor counsel as needed.

For questions about protected concerted activity, the National Labor Relations Act, or unions, contact Natalie Pattison at 503-276-2014 or [email protected].

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