There has been significant coverage of the unfair labor practice charges that have been filed by employees who were terminated over their postings made on Facebook, Twitter and other social media applications. (Examples here, here and here). The NLRB actions in some of these cases have lead to the belief by some union agents and employee representatives that comments made by employees (whether working at union or nonunion shops) through social media have greater protection than comments made in person.
Recently, the NLRB Office of General Counsel issued three advice memoranda clarifying what does and does not constitute protected concerted activity in the social media context. This advice dispells the argument that comments made through social media gain any greater protection under labor law than comments made in person. This guidance is important in that it makes clear that employers may discipline employees for their personal comments made in the social media world when:
- the comments are merely expressions of an individual’s gripe or frustration with an individual in management rather than an attempt to initiate or induce coworkers to engage in group action.
- the comments are made to those who are not co-workers of the employee (and the employee wasn’t Facebook friends with any co-workers).
- merely communicating with friends about happenings at work.
Whether an employee’s comments, whether made through social media or in person, constitutes protected concerted activity is an incredibly fact-intensive analysis. It may depend on whether the employee has any co-worker Facebook friends, Twitter followers or included in Google+ circles; what comments or feedback co-workers provide to the posts; whether posts are discussed with or seen by co-workers; and of course, the content of the communications themselves. The General Counsel guidance provide useful parameters for determining whether the conduct is protected under federal labor law.
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