With Facebook, Twitter, YouTube, and every other forum for speech on the world wide web, employers and employees are forced to consider what is appropriate to say about the workplace on social media.
But what kind of social media speech about the workplace is protected, and what kind is not?
The National Labor Relations Board (the “NLRB”) has taken on this cutting edge issue in a number of recent decisions, providing extremely useful and importance guidance.
In short, the NLRB has found that speech among and between employees concerning things like wages and working conditions are protected as “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under 29 U.S.C. § 157.
For example, the NLRB found that the termination of five caseworkers from Hispanics United of Buffalo (“Hispanics United”), a non-profit social services provider for low-income clients, was illegal.
In that case, one caseworker, Mariana Cole-Rivera (“Ms. Cole-Rivera”) made a Facebook post saying that she felt her co-workers did not work hard enough, even mentioning one by name. Ms. Cole-Rivera also asked posted “My fellow co-workers, how do you feel?”
The post generated responses from four other caseworkers who defended their job performance and criticized their working conditions. Specifically, they opined that Hispanics United was understaffed and that their case load was too arduous.
Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.
A complaint was issued by Rhonda Ley, NLRB Regional Director in Buffalo, New York and it was heard by Administrative Law Judge Arthur Amchan in July, 2011. Judge Amchan found that the employees’ Facebook discussion was protected concerted activity within the meaning of 29 U.S.C. § 157.
He reasoned that the Facebook discussion involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. Judge Amchan therefore ordered that Hispanics United reinstate the five employees and awarded them back pay.
Significantly, Judge Amchan also found that the employees did not engage in any conduct that forfeited their protection under the Act. If an employee simply makes harassing or offensive comments, even if they are related to working conditions, the speech is not protected.
For instance, the NLRB affirmed the firing of a bartender in Illinois because of a Facebook post he made. In response to a question about how his night at work had gone, the bartender complained that he hadn’t had a raise in five years and that he was doing the wait staffs’ work without tips.
The substance of this post certainly had to do with the bartender’s wages and working conditions. However, the NLRB found that it didn’t constitute “concerted activities” because the conversation was with a friend, and not a co-worker.
Even more troublesome, was the rest of the bartender’s post. The bartender went on to call the employer’s customers “rednecks” and said that he hoped they choked on glass as they drove home drunk. Needless to say, this comment does not constitute “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under 29 U.S.C. § 157.
If you have questions about what speech on social media is protected, or would like to discuss your workplace social media policy to make sure it is compliant with 29 U.S.C. § 157, please feel free to contact Ethan S. Klepetar at (413) 499-3520 or firstname.lastname@example.org.