It’s no secret that the National Labor Relations Board (NLRB) is a fan of social media. General Counsel for the agency has issued three advice memos on the topic that examined numerous employer social media policies and decisions to terminate employees for violating those policies. By and large, the memos support the right of employees to complain about their working conditions on Facebook, Twitter, and other social media sites. The NLRB itself has issued two decisions over the last year on the topic (which may be invalid), one of which upheld the termination of an employee who posted pictures of a car accident from work. We discussed that decision a few months ago. Recently, the Board issued another decision in the social media realm. This time, the employees got the last laugh.
The tale begins with a group of employees who worked for a clothing store in San Francisco. According to the employees, the store was located in a rough neighborhood. They lamented the fact that the store was open an hour later than other stores in the area, and they felt unsafe when they left the store in the evening. The employees complained to their manager, stating that they were sometimes harassed late at night by “the street people.” Their complaints fell on deaf ears. Undaunted, the employees took their fight to the web. They posted a number of comments on Facebook that were critical of their manager:
“It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime [sic] we try to solve conflicts NOTHING GETS DONE!!”
“800 miles away yet [the manager] still continues our lives [sic] miserable. Phenomenal!”
“And no one’s doing anything about it! Big surprise!”
“hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) [sic] see you tomorrow!”
You can probably guess what happened next. The employer found out about the posts and fired the employees, saying “it wasn’t working out.” One of the terminated employees filed an unfair labor practice charge with the NLRB, claiming she was unlawfully fired for engaging in activity protected by the National Labor Relations Act (NLRA). Discussing the terms and conditions of one’s work environment is protected by NLRA, meaning that employees typically cannot be fired for “talking shop” with coworkers, even if such conversations take place in public (or a publicly-accessible medium) .
The NLRB sided with the employees on this one. The Board found that the employees were using Facebook as a vehicle for changing their working conditions. They wanted to get the store to close earlier and were posting on Facebook to accomplish this goal (or so says the NLRB). Specifically, the NLRB found that:
“[t]he Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns. The employees also discussed looking at a book about the rights of workers in California so that they could determine whether [the employer] was violating labor laws. Such conversations for mutual aid and protection are classic concerted protected activity, even absent prior action.”
The bottom line: employers need to be very careful when it comes to addressing employee conversations on social media. Generally, employees’ comments are protected if connected to wages or working conditions. This means you cannot discipline these employees for social media activity related to the terms and conditions of their employment, even if a supervisor or the employer is criticized and even if such criticism seems disrespectful or could reflect negatively on the employer.