A majority of Americans have at least one social media account, and some people post information regarding their employment on social media sites. But what can one say about his or her employment on social media while being protected by the National Labor Relations Act (the “Act”)? In 2013, Attorney Michele Sumara reported on a case where employees were fired illegally for posting work concerns on Facebook . In another, more recent, social media case, the National Labor Relations Board (NLRB) decided even using language that may be deemed very offensive can be protected IF it falls under the definition of “concerted activity” and is not so egregious as to exceed the Act’s protection.

Activity Protected Under the National Labor Relations Act

First, it is important to know you cannot start disparaging your employer just because you had one frustrating experience with your boss that was unrelated to working conditions. There are conditions that must be met for an employee to have protection from adverse action despite the “at will” nature of the employment relationship. The cases are very circumstantial, as illustrated below.

So what triggers protection for an employee? First, the activity must be concerted. Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others. Second, it must be “protected” concerted activity, which means it cannot be so egregious as to lose the protection of the Act.

A summary of a very recent NLRB decision demonstrates what factors the NLRB will consider when determining whether media posts are protected concerted activities – and it may be a surprise to many.

Recent NLRB Decision Illustrates What is Protected Social Media Activity

In a decision released on March 31, 2015, the NLRB adopted the recommended Order of an administrative law judge finding an employer had violated the Act by terminating an employee who had posted a comment about his supervisor that included extensive offensive language. For the specific post, see the Board decision . Despite the fact the employee had used “distasteful” words and called his boss an epithet, the post was still deemed to have been protected concerted activity.

In summary: Mr. Perez worked as a server for a restaurant. There was a history of hostility toward employees and there was an upcoming union election. In a moment of frustration with the mistreatment, Mr. Perez took a break and went outside of the restaurant. During that break, Mr. Perez used his smart phone to post a comment about his boss that, while vulgar to some, addressed the mistreatment and encouraged co-workers to vote for the union.

Some of the factors that the Board relied upon in upholding the judge’s decision that Mr. Perez was protected by the Act were:

(1) Vulgar language was regularly used by many managers and employees at the workplace (see the decision for examples of the offensive language used by management).
(2) The employer showed hostility toward the employees’ union activity.
(3) Perez posted his comments while on break outside of the Respondent’s facility. There was no evidence that the comments interrupted the Respondent’s work environment or its relationship with its customers.
(4) The comments were consistent with employees’ previous complaints about management’s disrespectful treatment of the service employees and also encouraged employees to vote in favor of union representation.
(5) The policy the employer cited for Perez’s termination was too vague and over a several-year time period the employer had issued only five written warnings to employees who had used obscene language.

The employer was ordered to reinstate Perez, pay him back wages and interest, and was ordered to stop its other unlawful behavior, including being ordered to stop applying a “no talk” rule differently to union discussions than other discussions.

There was a dissenter among the Board who believed that Perez’s comments were not protected.

Protections from Other Laws

In addition to the NLRA protections, state laws protect an employee’s use of social media as well as account access information. For example, there is a recent Social Media Protection Act discussed by Attorney Charlton here. Additionally, there are general state privacy laws that may apply if your employer accesses information without consent. Moreover, the social media activity may be related to a protected class status (e.g. sexual orientation, religion, use of lawful products, disability) and thus may support a claim of employment discrimination.

It is important to note that there are special considerations for government employees’ use of social media related to their employment. For example, some content may be subject to open records requests. Also, there are constitutional protections that apply to government employees, such as free speech rights, freedom of association, and the protection against unreasonable searches and seizures.

If you have been refused hire, terminated, denied promotion, or suffered a similar adverse action and there is a connection to your use of social media, contact Hawks Quindel for a consult.

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