It’s a New NLRB But Employee Social Media Protections May Be Here to Stay

  • Aug 28, 2018
  • NLRB
  • John C. Hauge

When the election tide turned red in 2016, employers anticipated swift relief from many of the more onerous decisions issued by the Obama-era National Labor Relations Board (“the Board”).

By and large, this is precisely what has taken place via issuance of General Counsel Advice Memoranda and Board decisions rolling back several Obama-era Board initiatives favorable to organized labor.

The More Things Change

However, it appears that not every Obama-era position is going to be overhauled. In North West Rural Electric Cooperative, a  three-member panel of the Board declined to support an employer who fired a worker for posting comments on a Facebook page devoted to safety practices for electrical lineman that was critical of his unnamed employer and of the industry in general.  This ruling perpetuates the Obama-era protections that have been applied to employee activities on social media.

The employer in this case decided to discharge the employee after learning of the derogatory Facebook post from unhappy co-workers who were critical of his comments and indicated they would prefer not to work with him.   In justifying the termination decision, the employer noted that the employee was previously disciplined for a bad attitude and being uncooperative, that his co-workers were upset by the post, and because it was justified under established work rules addressing employee attitude and conduct.

The More Some Things Stay the Same

The Board, however, concurred with the finding of an administrative law judge that the Facebook post was not merely griping by an unhappy employee but rather, protected concerted activity under Section 7 of the National Labor Relations Act.  For one thing, the Facebook page at issue was intended as a platform for employees engaged in electrical line work to discuss workplace safety issues.  As such, it seemed appropriate to conclude that the activity was “concerted” and was undertaken for the “mutual aid and protection” of other employees.  That the post may have angered co-workers instead of uniting them was not sufficient to overcome the fact that the employee at issue was engaged in concerted activity that should be protected.

It appears that the Trump Board is not likely to view employee social media activity any differently than the Obama Board.   When an employee’s individual post touches on the terms and conditions of employment, it is very likely to be viewed as protected activity even though the employee is acting alone and even the post is critical of his/her employer and/or coworkers.

Bottom Line

Employers confronted with such posts should review their content to determine whether they are defamatory or so offensive that they might exceed the protection afforded by Section 7.  Otherwise, until the Board changes its view, it may be best to leave this sort of social media activity alone.