Tag Archives: Protected concerted activity

The National Labor Relations Board Wants You!

Contributed by Caryl Flannery

Ok, maybe not you, but the Board definitely wants your non-union employees and they’re using Section 7 of the NLRA to get them. 

In the past, Section 7 was looked upon primarily as bestowing the right to formally organize in labor unions.  Over the last few years, however, the Board has been focusing on the section of the law which secures the right to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  NLRA, Sec. 7.  It turns out the NLRB is of the opinion that those “other concerted activities” come under a pretty big umbrella and has been spreading the good news to non-union employees everywhere.  In 2012, the NLRB ratcheted up their campaign by implementing a new page on their website called “Protected Concerted Activity” where they invite non-union employees to read NLRB Section 7 success stories “of workers across the country.” Areas in which the Board has asserted jurisdiction in the last year include:

  • Social media policies – Last month, the Board ordered a private social services agency to reinstate five employees who were terminated for posting comments about their jobs on Facebook.  Although the postings included profanity and criticism of another employee the Board found that the comments were protected because the original post included an invitation for comment from other employees on a work-related issue.
  • Internal disciplinary investigations – Threatening the integrity of employers’ internal investigations of employee misconduct, the Board has held that employers can instruct employees not to discuss matters under investigation only where they can show a specific need to do so.
  • “At will” statements in employee handbooks – The NLRB held that a statement in a handbook declaring that an employee’s “at will” status could not be modified under any circumstances violated the NRLA because it failed to make clear that union organizing and collective bargaining could alter the “at will” relationship.
  • Class action waivers – Although at odds with several courts, the NLRB continues to maintain that waivers of class or collective action in arbitration agreements violate Section 7.
  • Challenges to termination of employment – Disgruntled discharged employees who can’t make out a colorable EEOC claim are now filing unfair labor practice charges alleging termination in retaliation for engaging in concerted protected activity, such as complaining about safety concerns.  The Board obligingly investigates all charges which, even if ultimately dismissed, can be costly to defend in terms of disruption of business and related costs.

What’s an employer to do?  Carefully draft policies and handbooks and review disciplinary practices for language or procedures that could be viewed as chilling or restricting concerted activity.  Focusing on clearly unprotected activity (such as Facebook posts that could constitute unlawful harassment) will deter unwanted attention from the NLRB.

Just Your Monthly Reminder…Social Media is Where the Action Is

Contributed by Brandon Anderson

As you may have gathered from the nearly monthly blogs on the issue (see blogs such as Friend Me?? and the three NLRB-related postings), labor and employment attorneys are fascinated and maybe slightly obsessed with the potential impact of social media on the employment relationship and labor and employment laws generally.  As these prior posts have indicated, the hot-off-the-press news has focused on our state governments’ view that employers should not request access to job applicants’ social media websites and the federal government’s view, per the National Labor Relations Board (NLRB), that employers cannot have social media policies that restrict employees’ rights to engage in concerted activity.  And due to these positions that our governments are taking, we have been advising employers that they need to have their social media policies reviewed by an attorney (and will continue to do so!).

In this climate where the barometer suggests an employer’s ability to rely on social media to get to know “the real applicant” or to ensure that an employee isn’t dragging an employer’s name through the mud might be limited, I read the following headline on MSNBC: “Bartender Fired Over Racist Facebook Post.”  In a nutshell, the bartender posted blatantly racist and extremely offensive comments about bar patrons.  The bartender was subsequently fired.  The lawyer in me immediately wondered whether the bartender would sue.  I then kicked a couple of theories around in my head.  There is the “go-to” First Amendment right to free speech—sometimes people are surprised to learn that, to some extent, employees sacrifice this right when they enter into an employment relationship.  A more “novel” theory might be whether the bartender’s rant could be considered “concerted activity”—the “I was just complaining about my job with my co-workers and that’s protected concerted activity” defense.  This probably won’t pass the smell test either, especially if the employer maintained a social media policy that prohibited “Disparagement of any race, religion, gender, sexual orientation, disability or national origin.”  As some of our blogs have indicated, the NLRB has indicated that such discriminatory activity can be prohibited and is not considered protected concerted activity. 

In this day and age, it is critical that employers create and enforce a social media policy.  As we blogged in January, February, March, and now in April, it is also critical that employers ensure that their policies are drafted in a way that will be best positioned to withstand the possible legal challenges.  Remember, defending against a weak but “novel” legal theory still costs you time, effort, and money.  As promised: employers really should consult with an attorney and have an attorney review their social media policies.

Employers Beware: NLRB Issues Second Report Confirming Employees Have Broad Protection when Complaining on Facebook

Contributed by Jon Hoag

On January 24, 2012, the NLRB’s Acting General Counsel, Lafe Soloman, issued his second report regarding how the Board interprets social media cases.  The previous social media report issued by Mr. Soloman on August 18, 2011 sent shockwaves throughout the employment world – union and non-union employers alike.  The August 18, 2011 report provided examples of the Board granting protection to employees that engaged in outrageous and disparaging conduct because other employees shared in the online complaining and commiserating.  Unfortunately for employers, this second report only confirms that the NLRB intends to maintain broad protection for employees who use Facebook and other social media to complain about their job or employer.

The recent case summaries overwhelmingly show that the NLRB will find that an employee’s online posting is “protected concerted activity” (i.e. covered by the Act’s protections) as long as there is some indication that the employee’s social media posting had to do with terms and conditions of employment and at least one other coworker responded and shared in the concern.  For example, the Board found that one employee’s complaint on Facebook about the employee’s dispatcher not responding and related employment concerns was just a gripe and not protected by the Act because none of his co-workers responded to the post.  In a separate case, however, the Board found that an employee’s Facebook post that said her Employer had messed up (certain expletives were included in the posting) and she was done with being a good employee was protected concerted activity because some of her coworkers (who were also Facebook “friends”) responded by stating, among other things, “I’m right behind you.”  The bottom line seems to be that if an employee’s Facebook gripe generates a lot of responses from coworker “friends”, the NLRB will find the conduct is protected by the Act.

Of equal concern is that the NLRB is steadfast that employers are significantly limited from applying professional conduct work rules and non-disparagement rules to an employee’s use of social media.  The NLRB’s recent guidance shows that in case after case, the NLRB found employer work rules and anti-disparagement policies to be a violation of the employees’ Section 7 rights.  The primary concern expressed by the NLRB is that the policies did not contain any limiting language to expressly state that the policy was not intended to apply to Section 7 rights and/or that the policy does not prevent employees from discussing wages, working conditions, or other terms and conditions of employment.  As such, all employers – union and non-union – are encouraged to review policy manuals and employee handbooks to make the necessary revisions to come into compliance with the NLRB’s wild interpretation and application of law. 

The following is a link to the NLRB’s second report:  http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report.