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Social media and Section 7 rights: employers under fire

October 9, 2013
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Imagine this: An employee names and accuses a coworker of calling fellow employees unhelpful on Facebook. The post asks Facebook friends (some of whom are coworkers) to respond. A few coworkers respond aggressively and in vulgar terms. One states, “What the hell, we don’t have a life as is, what else can we do???” Another, “Tell her to come do [my] f---ing job[and see] if I don’t do enough, this is just dum.” The targeted coworker takes a copy of the comments to the company director. The director views the comments as cyber-bullying and fires the offending individuals for violating the organization’s harassment policy.

swider-david.jpg Swider

This situation occurred in Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012). What happened next may surprise you. The National Labor Relations Board ordered that the workers be reinstated with back pay. In doing so, the NLRB found the employees’ Facebook postings constituted protected concerted activity under Section 7 of the National Labor Relations Act, 29 U.S.C. § 157. To the NLRB, the employees’ comments were aimed at their job performance and were “concerted for the ‘purpose of mutual aid or protection’ as required by Section 7.’”

zimmerly-philip.jpg Zimmerly

Section 7 protects the right of employees “to self-organization, to form, join, or assist labor organizations, … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (Emphasis added.) These protections extend to employees whether they are unionized or not. The employer in Hispanics United was non-union and its employees were not engaged in any known union activity. Nonetheless, Section 8(a)(1) of the NLRA makes it an unfair labor practice for any employer to “interfere with, restrain, or coerce” employees in the exercise of their Section 7 rights. 29 U.S.C. § 158

The Hispanics United case is illustrative of the NLRB’s recent push to extend what it means to engage in concerted activity in the digital age. As Mark Pearce, chairman of the NLRB, described in a 2013 New York Times article, social media is the new water cooler. “All we’re doing is applying traditional rules to a new technology.” Yet, applying Section 7 to social media, such as Facebook and Twitter, has far-reaching implications. Employers, especially non-union employers, must recognize the shift and act affirmatively to avoid being caught in the crosshairs of an NLRB investigation.

First, employers must recognize the Internet may allow greater access to its employees’ conversations, but that may not be a good thing. A few years ago, one might expect employees to share complaints on a coffee break. These “gripe sessions” involved limited participants and were subject to differing versions of what was meant or said. Today’s employers should not be surprised if employees complain about their jobs online, in clear and permanent detail, for the whole world to see.

Employers may be understandably disturbed when complaints are shared so broadly, but they should be careful if and how they respond. The NLRB has not only extended Section 7 protections, but it has also targeted employers’ non-disparagement, social media, insubordination, electronic resources, and similar policies to assure employees have greater latitude to discuss wages and conditions of employment. For example, in Knauz Motors, Inc., 358 NLRB No. 164 (2012), a car dealer had a policy that, “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” The NLRB found that this common prohibition chilled Section 7 actions “because employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the Dealership’ as encompassing Section 7 activity.”

What is an employer to do? Will this new trend afford employees license to rip apart bosses and coworkers online without facing consequences? Unfortunately, with the current NLRB, that may be the case in all but the most egregious or “non-concerted” circumstances.

At least paying lip service to these amorphous boundaries, an advice memorandum issued by the NLRB associate general counsel in May 2013 purports to limit what online activity is deemed concerted activity under Section 7. According to the background facts, 10 individuals participated in a Facebook “group message” initiated by a former employee organizing a social event, through which the charging party verbally attacked a former coworker. The employee stated, “They [the Employer] are full of s--- . . . . They seem to be staying away from me, you know I don’t bite my [tongue] anymore, F--- . . . FIRE ME . . . . Make my day . . . .” No other employees responded to her comments. The employer obliged the discontented worker and fired her.

The associate general counsel advised that the tirade did not amount to protected concerted activity because the party’s comments “merely expressed an individual gripe rather than any shared concerns about working conditions.” The only subsequent posting pertaining to the workplace did not contain a common thread pertaining to any shared concerns about working conditions.

This advice provides little comfort or guidance for employers who encounter similar tirades online. Instead, it further blurs the line employers must walk when dealing with online criticism. For example, the memo’s analysis implies if other commenters had responded, or if the topic of conversation had been “mutual workplace concerns,” such as wages or job security, the discussion may have suddenly transformed into protected activity under Section 7, thereby rendering the consequent discipline unlawful.

While the NLRA may have been intended to promote workplace peace and balance employer business needs against employee rights, these goals have been largely overlooked by the NLRB in favor of creating a breeding ground for union organizing. Such a broad application of Section 7 rights to social media leaves employers vulnerable in utilizing traditional employment policies in the face of new and expanding technology. Until Congress or the courts step in, businesses must be mindful of these new standards as they respond to an ever-growing climate of employee social media use and misuse.•

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David Swider is chair of the Bose McKinney & Evans Labor and Employment Law Group. He represents employers in labor and employment law matters, including labor and employment law litigation, employment discrimination, NLRB practice and procedure, grievance resolution and arbitration, affirmative action, collective bargaining, wage and hour, and union avoidance. Philip Zimmerly is an associate in the Labor and Employment Law Group at Bose McKinney & Evans. The opinions expressed are those of the authors.

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  1. Compromising precious constitutional rights in order to protect them? Rather like the military intelligence slogan that the town had to be destroyed in order to save it. Looks like Joseph, Mary and Baby Jesus will have quite the eventful Boxing Day this year. Wise men will arrive to find no one to accept their gifts? Oh well, wisdom not all that desired this xmas anyway. Maybe the ACLU and Christian attorneys can work out a "three days every third year" visitation compromise and all of this messy litigation stuff can just be boxed up as well? It is an art form, now isn't it? Thomas More, a man of manifold compromises is undoubtedly cheering on wildly.

  2. From the MCBA: “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer. HOPING that the MCBA will denouce the execution style killig of two NYC police officers this day, seemingly the act of one who likewise believes that the police are targeting blacks for murder and getting away with it. http://www.mediaite.com/online/two-nypd-cops-fatally-shot-in-ambush-in-brooklyn/ Pray this violence soon ends, and pray it stays far away from Indiana.

  3. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  4. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  5. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

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