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LAW ALERT: As The FB Page Turns: The Continuing Drama Surrounding Employee FB Postings and the NLRA

August 8, 2011

With the TV networks cancelling daytime Soap Operas left and right, it seems up to the NLRB to provide us with our daily dose of drama. As has been previously reported here and in countless other articles, the National Labor Relations Board (“NLRB”) has been closely scrutinizing employers’ decisions to terminate employees for posts on Facebook. Until very recently, that scrutiny has universally led to unfair labor practice complaints having been filed against the employers, claiming the terminations were a violation of Section 7 of the National Labor Relations Act (“NLRA”). Those cases have unceremoniously ended in settlement, without employers being able to obtain much guidance for the limits of future actions or gauge the cost and dangers associated with acting in response to employees’ Facebook rants. Employers were left to wonder whether all Facebook postings by employees would be considered protected activity by the NLRB.

Now it appears the NLRB may be beginning to frame both sides of the issue by illustrating when and under what circumstances an employee who is merely griping on Facebook may be disciplined or terminated. Three recent NLRB advice memoranda reaffirm that employees who engage in protected concerted activity online are protected against employer discipline just like everyone else. However, the Board has now found that employees who merely complain or gripe about their employer online can be subject to discipline, up to and including termination. Ultimately, where the line between “protected concerted activity” and mere gripes will be drawn by the NLRB is anyone’s guess. However, below is the NLRB’s current “Maginot Line”:

An individual employee’s conduct is concerted when he or she acts “with or on the authority of other employees,” when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings “truly group complaints to the attention of management.” Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee self-organization.’” On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted. Comments must look toward group action; “mere griping” is not protected.”

Applying these standards to three recent NLRB opinions, the Board in JT’s Porch Saloon, found it ok to terminate a bartender after posting comments in a Facebook conversation with his sister expressing his hope that his employer’s "redneck" customers would "choke on glass as they drove home drunk." Notably, none of his co-workers participated in the Facebook conversation. Days after the postings, his employer terminated him, (wait for it……..) via Facebook. JT’s Porch Saloon,Case No. 13-CA-46689 (July 7, 2011). In Wal-Mart, an employee vented about his own frustrations by insulting his Assistant Manager through his Facebook page. The employee referred to his Assistant Manager as a "puta" and said her comments regarding his performance were "retarded." Feeling emboldened by his computerized echo chamber, the employee signed off by stating that Wal-Mart could "kiss [his] royal white ass." The Board found that while co-workers responded to his posts, they were expressions of individual support and not protected concerted activity. Wal-Mart, Case No. 17-CA-25030 (July 19, 2011). In Martin House, an employee at a homeless care facility was terminated after posting inappropriate comments about residents. While clocked in for work, the employee posted from her smartphone (or not-so-smart phone) that the institution was "spooky" and how the clients would "just pop meds." In this instance no co-workers were part of the Facebook conversation. Martin House, Case No. 34-CA-12950 (July 19, 2011)

The Board felt none of the conduct described in the three cases above met the standard of “protected concerted activity.” The Board felt the employee in JT’s Porch Saloon was simply expressing his personal dissatisfaction by making derogatory remarks about his customers. The Board further felt the employee in Wal-Mart was merely venting about his own work relationship with a supervisor. The Board also felt the employee in Martin House was making insensitive comments about the employer’s customers. Therefore, the Board ultimately found this conduct was not protected concerted activity under the NLRA, leaving the employers free to discipline or terminate the employees.

Setting aside for the moment the vulgarities contained in the Facebook postings from the Wal-Mart employee, it is difficult to discern much of a difference between this scenario and others that have caused the NLRB to issue Unfair Labor Practice Complaints. Employers should continue to be very cautious when dealing with employees whose social media posts criticize supervisors. However, these opinions do appear to illustrate that when employees’ postings involve comments regarding customers or other third parties, employers have much more flexibility in the eyes of the NLRB.