Brian D. Wassom is a litigation attorney in Southeast Michigan whose practice focuses on copyright, trademark, publicity rights, media law, and related subject matter. Brian blogs about the law of social and emerging media on Wassom.com and invites you to join his Twitter conversation on @bdwassom.
As I’ve previously discussed, the National Labor Relations Board has taken the stance in several recent cases that employees’ griping about their employers in social media sites was “concerted activity” protected by federal labor laws. Many people have felt that those cases set a disturbing precedent and overly restricted employers’ ability to protect their reputations from being damaged by their own employees.
In July 2011, however, we saw evidence that there is some employee conduct that even the NLRB thinks goes too far. In three separate cases, the Board’s Division of Advice upheld the termination of an employee over gripes they posted on Facebook.
When employees go too far
The first case, JT’s Porch Saloon & Eatery Ltd., involved a bartender who was fired for griping on Facebook about his employer and insulting its customers. The subject of his ire was the saloon’s policy that waitresses were not required to share their tips with bartenders, even though bartenders helped deliver food to the table.
The bartender’s comments came in response his stepsister asking him how his night at work had been. As recited by the NLRB,
he responded with complaints that he hadn’t had a raise in five years and that he was doing the waitresses’ work without tips. He also called the Employer’s customers “rednecks” and stated that he hoped they choked on glass as they drove home drunk.
The bartender’s digs on his own customers sound a lot like the insults of Tucson residents that got an Arizona Daily Star reporter fired — another termination that the Board upheld.
More important in this case (at least from the NLRB’s perspective), however, was the fact that the bartender’s comments were directed at his stepsister instead of his co-workers or his management. As the Board explained, “concerted activity” is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Concerted activity also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring “truly group complaints” to management’s attention.
Although the record showed that the bartender had once complained about the policy to a coworker, there was no evidence that this post was an “outgrowth” of that conversation. Moreover,
he did not discuss his Facebook posting with any of his fellow employees either before or after he wrote it, and none of his coworkers responded to the posting. There had been no employee meetings or any attempt to initiate group action with regard to the tipping policy or the awarding of raises. There also was no effort to take the bartenders’ complaints about these matters to management.
For those reasons, the comments did not qualify for federal protection. But even though the Board upheld the termination, this reasoning does not give employers much assurance. What if only one other employee had seen and commented on the bartender’s post? Or what if he had made a single comment about the policy to a manager? Would the Facebook rant then be considered sufficiently “concerted” activity?
Considering whether speech was “work-related”
The second case involved a full-time recovery specialist employed by Martin House, a nonprofit homeless shelter specializing in treating the mentally ill. While at work, the employee (or “Charging Party”) engaged in the following Facebook conversation with two of her friends, for which she was fired:
Charging Party: Spooky is overnight, third floor, alone in a mental institution, btw Im not a client, not yet anyway.
Friend 1: Then who will you tell when you hear the voices?
Charging Party: me, myself and I, one of us had to be right, either way we’ll just pop meds until they go away! Ya baby!
Charging Party: My dear client ms 1 is cracking up at my post, I don’t know if shes laughing at me, with me or at her voices, not that it matters, good to laugh
Friend 1: That’s right but, if she gets out of hand, restrain her.
Charging Party: I don’t need to restrain anyone, we have a great rapport, im beginning to detect when people start to decompensate and she is the sweetest, most of our peeps are angels, just a couple got some issues, Im on guard don’t worry bout a thing!
Friend 2: I think you’d look cute in a straitjacket, heh heh heh …
The Board found all sorts of things wrong with this conversation. As in the JT’s Porch Saloon and Arizona Daily Star cases, the comments were not directed to co-workers, and did not arise out of concerns raised with them or with management. Indeed, this post was not even accessible to the employee’s co-workers, since she was not Facebook friends with any of them. (It was discovered by a former client.)
In addition, though, the Board found that these comments “did not even mention any terms or conditions of [her] employment” (unless you count spookiness as a workplace condition, that is). On top of that, they revealed her clients’ confidences and were posted during work hours when she should have been performing other tasks.
Just “griping” versus call-to-action
The third case, involving a Wal-Mart customer service employee in Oklahoma, is interesting because the Board upheld the employee’s termination even though co-workers commented on the post and he threatened to take his complaints to management. After a frustrating day on the job, the employee posted “Wuck Falmart!” and threatened to quit.
Asked by a co-worker to explain, the employee wrote:
You have no clue [Employee 1]…[Assistant Manager] is being a super mega puta! Its retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting it for that price…that’s false advertisement if you don’t sell it for that price…I’m talking to [Store Manager] about this shit cuz if it don’t change walmart can kiss my royal white ass!
Other co-workers responded, but only with generic expressions of support and sympathy.
The Board ruled for Wal-Mart because it determined these posts to be “an expression of an individual gripe” against the Assistant Manager rather than an attempt to “initiate or induce coworkers to engage in group action.” Also interesting is that the Board based this conclusion in part on how the coworkers reacted to the post. One “merely indicated that he found [it] humorous” (his exact words were “ bahaha like! ”); another asked why he was “wound up,” while another said “hang in there.” The Board read these comments to suggest that the rant was simply “a plea for emotional support.” Wal-Mart also argued that, regardless of whether the post was concerted action, the employee’s “use of profanity was so opprobrious as to deprive him of the [National Labor Relations] Act’s protection.” The Board left this argument for another day, but I expect we’ll see it come up again soon.
The outcome of this case appeals to common sense. But that makes it difficult to reconcile with the Board’s more extreme stances in favor of employee posts, such as its decision that a car salesman’s criticism of the food his employer served at a sales event was “concerted activity” even though no coworkers commented on the post, and only some even had access to it. That case, and others like it, are still pending.
Takeaways from these three decisions
- The pendulum may be starting to swing back in the direction of giving employers more leeway to terminate employees for online posts that damage the employer’s reputation–but only slightly.
- Insults and derogatory comments about customers and revelations of client confidences are unlikely to be “protected concerted activity.”
- A key factor in determining whether the online statements are protected is the degree to which they relate to offline complaints about terms and conditions of employment, whether directed to coworkers or management.
- How the Board characterizes an employee’s post may be influenced by how coworkers respond to it.
- Whether an otherwise-protected comment can lose that protection because it contains too much profanity remains an open question.