NLRB: Some Employees’ Online Rants Cross the Line

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.Guest blogger Brian Wassom explains what this might mean for your workplace.

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.