Added on 08/10/2016 by kalsonlaw

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers. In addition, it guarantees the rights of employees to engage in “protected concerted activities”. Accordingly, why most people associate the NLRA and the National Labor Relations Board (NLRB) with a unionized workforce, the act is far reaching and covers employees in every workforce. Recently, the NLRB has been at the forefront of protecting employees’ free speech rights and addressing social media issues.

Protected concerted activity is conduct or action engaged in, with or on the authority of other employees and not solely by and on behalf of the employee itself. Concerted activity also includes circumstances where individual employees seek to initiate or to prepare for group action and where individual employees bring truly group complaints to the attention of management. So, if a group of two or more employees has a complaint about wages or other working conditions by complaining together, their activity is protected. In the Guardsmark case, the Board found that the company violated Section 8(a)(1) by maintaining a rule that prohibits its employees from complaining about their terms and conditions of employment to the company’s customers.

The NLRB has also found that an employer’s standard practice of asking employees making work-related complaints not to discuss the matter with other employees during the employer’s investigation, violated the employee’s Section 7 rights under the NLRA. Section 7 of the NLRA protects employees rights to engage in protected concerted activity including discussing the terms and conditions of employment with co-workers. The NLRB has long held that employer rules or policies that prohibit employees from engaging in Section 7 activity are unlawful. So the tip is, if you are going to complain about your wages or another condition of employment, be sure not to complain alone.

The NLRB has recently addressed social media cases involving protected concerted activity. Even if you are not represented by a union, federal law gives you the right to ban together with co-workers to improve your lives at work, including joining together in cyberspace such as Facebook. You have the right to address work-related issues and share information about pay, benefits and working conditions with co-workers. You have the right to take action with one or more co-workers to improve your working conditions. Using social media can be a form of protected concerted activity.

For example, an employee, in preparation for a meeting with the company, posted on Facebook an accusation by a co-worker. He asked other co-workers how they felt about the issue. Four co-workers responded. The employee and four responders were discharged when the Facebook exchange was reported to management. The acting General Counsel of the NLRB maintained that the terminations were unlawful. The post was an appeal to co-workers for assistance in dealing with the Executive Director in direct relation to criticism of the poster’s job performance and work load issues

In another case, the Acting General Counsel addressed an issue where current and former employees found out that they owed State income taxes relating to earnings from a Sports Bar. One employee requested this matter be discussed at an upcoming management meeting. A former employee posted on her Facebook page a statement expressing dissatisfaction with the taxes owed and that the owner of the business could not correctly do the IRS paperwork. Two employees and two customers commented on the posting. The two employees were terminated. Because the Facebook posting concerned a term and condition of employment (tax withholding) a concern brought to the employer’s attention and shared by other employees was determined to be protected concerted activity.

If an individual posts comments, it may not be protected concerted activity. The comments should be made with the authority of other employees. If the postings deal with an individual problem with management and not the initiation of group actions, it will not be protected. Concerted activity may lose protection if it is threatening, malicious or reckless.

The NLRB has also addressed the legality of social media policies of the employer. Cases find the employer’s social media policies to be over-broad or unlawful if they can reasonably be construed as limiting the exercise of Section 7 rights. General Counsel found that an employer’s internet/blogging policy was unlawfully over-broad because it tended to chill employees in exercise of their rights under Section 7 by barring “inappropriate discussions” without defining the terms or giving examples. An employer’s social media policy prohibiting postings that would compromise the confidentiality of any person or entity; constitute harassment or embarrassment to the employer or any employee; be untruthful; or that may harm the reputation or good will of the hospital employer were unlawfully over-broad. The Board noted there was a lack of definition or guidance as to the core terms of the prohibition and protected activity could be encompassed without limitation. Another case found that prohibiting employees from posting company business on their personal account, posting items they would not want Supervisors to see, and posting inappropriate pictures or comments involving the company or other employees was unlawfully over-broad.

In Laurus Technical Institute, the Board found an employers “no gossip” policy was unlawful as it was over-broad and ambiguous. In the Bosch-Honda case, the Board found a prohibition against wearing pins, insignias or other messaged clothing which are not provided by the company unlawful.

Believe it or not, the Board found that Walmart’s social media policy was a good sample of a policy and not unlawful. Social media postings continues to be a hot bed legal issue in the employment arena. The postings may present liabilities for employers. Recent cases involving social media will be addressed in a future blog. Remember, if you are going to complain, don’t do it alone.