Thursday, 24 January 2013 14:20
By Patrick Ogilvy
In its second recent decision on the subject, the National Labor Relations Board (NLRB) has determined discussions between employees on Facebook may constitute concerted, protected activity under the National Labor Relations Act (NLRA), and employees cannot be terminated or otherwise disciplined for engaging in such discussions.
Supervisor does not “like” Facebook discussion
As a recap of the facts from the Administrative Law Judge’s (“ALJ”) holding in September, 2011, a social worker was employed by a non-profit organization specializing in assisting victims of domestic violence. She took to Facebook after a supervisor made criticizing comments about employee performance and stated her intent to address the issue with the organization’s executive director. Using her own personal computer from home, the social worker posted the following message on her Facebook page: “[Supervisor] feels that we don’t help our clients enough at [organization]. I about had it! My fellow coworkers how do u feel?” Four other off-duty social workers employed with the organization, also using their personal computers at home, posted responsive messages on the Facebook page.
The supervisor saw the Facebook posts and responded with her own message, demanding the social workers “stop with ur lies about me.” The supervisor then complained to the executive director, claiming she had been slandered and defamed by the social workers. The first workday after the postings, the executive director terminated the five social workers, stating their remarks constituted “bullying and harassment” of the supervisor in violation of the organization’s “zero tolerance” policy prohibiting such conduct. The ALJ found the Facebook posts concerted, protected activity, and ordered all five social workers reinstated.
Protected, concerted activity
On appeal, the NLRB considered whether the Facebook discussion between the social workers constituted a protected, concerted activity under the NLRA. The NLRB found no question the activity was concerted, as the initiating social worker alerted her coworkers about the supervisor’s complaint about their work performance, expressed her opinion about the complaint and solicited her coworkers’ views about the complaint. The coworkers’ responses initiated group action to defend themselves against the supervisor’s alleged statements, making their posts concerted activity under the NLRA.
However, just because communication is concerted, does not mean it is protected. Here, though, the NLRB also found the Facebook discussion constituted protected activity because it was focused on the social workers’ job performance - a core Section 7 right - particularly due to the negative impact the supervisor’s criticism could have on their employment.
Unlike some other cases involving employee discussions on Facebook, here the NLRB here did not discuss whether the organization’s prohibition on harassment was valid under the NLRA, so it is not clear whether the NLRB had any issue with the policy. Instead, by focusing on the protected nature of the activity, the NLRB has indicated employers should look carefully at the subject matter of any Facebook discussions involving employees before deciding to take an employment action based on the discussion. Although employers certainly have a valid interest in preventing employees from making derogatory comments about the employer or harassing another employee in a public forum, employees have the absolute right to discuss Section 7 rights, including work-related issues without employer interference in almost any forum under the NLRA.