Facebook and Twitter Are the New Water Coolers: Social Media Posts as Protected Concerted Activity

Authors: Li-An C. Leonard / Anne K. Wilson

Facebook Post

"[A] coworker feels we don't help our clients enough at [sic].
I about had it! My fellow coworkers how do u feel?"

Comments in Response

"What the Hell, we don't have a life as is, What else can we do???"
"Tell her to come do [my] f-ing job n c if I don't do enough, this is just dum."


These employee Facebook posts generated several responses from other employees, some of whom were extremely angry, defending their job performance and criticizing working conditions. As a result, the employer fired five employees for bullying and harassment of the co-worker who was the subject of the posts. The employees recently challenged the termination of their employment as a violation of the National Labor Relations Act (NLRA).

Employees, including those not represented by a union, have numerous rights under the NLRA. The principal source of NLRA rights is Section 7. Section 7 gives employees the right to engage in "concerted activity for the purpose of collective bargaining or other mutual aid or protection." In addition, Section 8 (a)(1) of the NLRA prohibits employers from interfering with an employee's rights under Section 7. These provisions of the NLRA cover both union and non-union workers.

Under the NLRA, employers must not chill or penalize communications between employees concerning work conditions, terms of employment (salary, benefits), managers, or management. As one administrative law judge stated, "[d]iscussions about the workplace are protected whether they occur at the water cooler or the virtual water cooler."

The National Labor Relations Board (NLRB), the federal agency charged with administering and enforcing the NLRA, concluded that the above Facebook posts constituted protected speech under Section 7. As a result, the employer was ordered to reinstate all five employees, pay back pay, and post a notice concerning employee rights and the violations found.

On August 18, 2011 and then again on January 24, 2012, the NLRB issued updated guidelines for social media policies, striking down policies of several companies as "overbroad" restrictions on the use of social media by employees. Examples of overbroad restrictions include: prohibitions on online communications that are "disparaging" to the company, "inappropriate conversations," "disrespectful conduct," communications that "criticize co-workers," "unprofessional communication" that could negatively impact the employer's reputation or interfere with the employer's mission, prohibiting the use of the company's name or service marks outside of the course of business, and requiring employees to expressly state that their comments are their personal opinions and not those of the employer every time that they post on social media. All of these restrictions were found to have violated the NLRA and the right of employees to engage in concerted activity.

The only policy approved by the NLRB prohibited the use of social media communications to "post or display comments about co-workers, supervisors, or the employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the employer's workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic." (National Labor Relations Board, Report of General Counsel (Jan. 24, 2012) at 16). The NLRB found these restrictions lawful because they appeared in a list of plainly egregious conduct that could not be reasonably understood by employees as restricting protected activity under Section 7.

Under the NLRB guidelines, a company's social media policy may require employees to take precautions when engaging in any social media activity in which they are associated with the company. Examples include: respecting the privacy of co-workers; protecting confidential and proprietary information regarding company business or customers; and adhering to all federal and state laws and regulations.

This is a rapidly evolving area of the law that will likely continue to change in coming months as more company policies are challenged under the NLRA. Consequently, you should review any existing social media policy to make sure it complies with the new guidelines. You should also monitor the NLRB website, www.nlrb.gov, for future updates. We are also available to help you avoid some of the pitfalls which arise from social media postings.



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The information contained in this publication is not intended to be and should not be construed as legal advice or opinions. Such advice and opinions are provided by the firm only upon engagement with respect to specific factual situations.
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