Social media complaints could lead to job loss — or not

Over the past year, the National Labor Relations Board has been actively involved in an ongoing conversation about the extent to which employees can use social media to discuss their employers. Section 7 of the National Labor Relations Act (NLRA) applies to union and non-union environments and gives employees the right to discuss the terms and conditions of employment with co-workers and others. The NLRB says this includes the right to discuss such terms and conditions on social media sites.

Employers may face situations in which employees who publicly criticize the organization will be exercising their Section 7 rights and cannot be disciplined or retaliated against because of such criticism. Still, the fact that some employee behavior is protected doesn’t mean that any derogatory posting has to be allowed.

Protected posts must be “concerted activity.”

Most of the cases that make headlines involve situations in which the employer violated an employee’s NLRA rights. However, recent guidance from the NLRB includes a discussion of cases in which employees were not protected under the NLRA because their actions did not qualify as “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In order to be engaged in protected “concerted activity,” employees must discuss the terms and conditions of their employment with others. An individual must act with or on the authority of other employees.

In one case, a bartender was fired for a Facebook post that insulted his employer’s customers. In the post, which the employee made in reply to a relative’s inquiry about his night at work, the employee also complained that he hadn’t had a raise in five years and that he was doing the work of the employer’s waitresses, without the tips.

While the employee did discuss terms and conditions of his employment (his complaints regarding the tipping policy and his lack of a raise), he did not do so with co-workers, and no co-workers responded to his post. Because the employee’s actions did not qualify as “concerted activity,” the NLRB found the employer’s decision to terminate acceptable.

In another case, a newspaper reporter used his Twitter account (which identified him as a newspaper employee) to criticize the employer’s copy editors. In response, the employer instructed the individual to refrain from airing his grievances or commenting about the newspaper in any public forum. While the employee did not tweet further about the newspaper, he did post inappropriate Tweets relating to homicides in the city as well as several containing sexual content. Later, he posted a Tweet criticizing a local television station, though he later apologized to the station via email for his comment.

Eventually, the employee was terminated for disregarding instructions to refrain from making derogatory comments that could damage the newspaper’s reputation. In this case, the NLRB also found the employer’s decision to terminate acceptable, because the employee’s conduct did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.

These examples should help employers understand that there are situations in which employees may be disciplined for disparaging remarks made on social media sites. However, be aware that what begins as an individual gripe could turn into protected concerted activity if the complaining employee’s co-workers join in on the conversation. For instance, if (in the case above involving the bartender) other employees had joined in and complained about employment conditions, the NLRB may not have found the employer’s decision to terminate acceptable.

Katie Loehrke is an associate editor of human resources at J.J. Keller & Associates, Inc. She is editor of J.J. Keller’s Employment Law Today and the SUPER adVISOR newsletters. J.J. Keller is a compliance resource firm headquartered in Neenah, Wis. To learn more, visit www.jjkeller.com.

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