NLRB releases guidance on work issues posted on social media
August 28, 2011 by admin
Filed under Lingerie Events
Since social networking caught on with a cyber-vengeance, some employees have been using Facebook, YouTube and other forms of Internet communications to voice complaints about their workplace issues.
This high-tech form of expressing dissatisfaction can be a virtual thorn in the side of employers who legitimately are interested in protecting their companies’ reputations, employees and products. However, there’s a precarious balance between the rights and interests of a company to manage and guard their reputations, with employee rights to engage in protected activity under the National Labor Relations Act. Discussions about work on social networking sites is one of those issues.
To clarify its position on workplace social networking, the National Labor Relations Board released a report Aug. 19 that summarizes the outcome of investigations conducted by the board, involving postings about workplace issues on social media sites. Although the NLRA commonly is thought of applying only to unionized companies, the act also applies to employees of employers that are non-union.
The report shows the NLRB determined in some cases that employee postings on Facebook constituted “protected concerted activity” because employees were discussing terms and conditions of employment with fellow employees. Conversely, other cases involved Facebook or Twitter posts in which the NLRB found social networking activity was not protected. The NLRB also found that in some cases, the employer’s social networking policies were unlawfully overly broad.
One insightful case the NLRB cited involved a luxury automobile dealership that fired a salesperson for commentary and photos he posted on his Facebook page that criticized a sales event hosted by his employer. The event was conducted to introduce a new car model, and customers were offered refreshments some salespeople thought were too inexpensive and sent a wrong message that would negatively effect their sales commissions.
While at home after the event, one of the disgruntled salespeople posted a series of comments and photos on his Facebook page about the event, including pictures of the refreshments and co-workers posing with the food. The employee facetiously posted he was “happy that his employer had gone all out in launching an important new car by offering small bags of chips, inexpensive cookies from a warehouse club, semi-fresh fruit and overcooked hotdogs served on stale buns.”
Upon learning of the posting from another dealer, the employer ordered the salesperson to remove the pictures and comments, and ultimately, the employee was fired for embarrassing the dealership. The NLRB disagreed, however, and asserted the employee was engaged in concerted activity permitted by the NLRA, and the posting was not so critical or “disloyal, reckless, or maliciously untrue as to cause the employee to lose NLRA protections.”
In another case, the NLRB found in favor of the employer. In this case, a bartender openly complained about his employer’s tip policy during a Facebook conversation with a relative. The bartender also complained he hadn’t had a raise in five years, called the customers “rednecks” and stated he hoped the customers would “choke on glass as they drove home drunk.”
Significantly, the bartender didn’t discuss his concerns with co-workers, but rather limited his complaints and hopes for choking drunk customers only to his relative. Similar to the salesperson in the first case, the bartender was fired for his Internet posting, but in this case, the bartender didn’t discuss the posting with his co-workers, and none of them responded to it. Therefore, although the Facebook message focused on the terms and conditions of employment, the board upheld the firing because it didn’t involve concerted activity among the bartender’s co-workers.
Reading the NLRB’s complete report gives employers insight into the mind of the NLRB and how it views postings about the workplace on social networking sites. It’s well worth a review of the entire report. A link to the report is available at www.nlrb.gov/print/1480.
Employers are becoming more aware and concerned about employees who blog about work problems. Therefore, it’s important for an employer to know when an employee crosses the line and when the employer’s reaction to a posting might result in an NLRB investigation.
