Tuesday, January 10, 2012

Is the NLRB backing off its position on social media as protected, concerted activity?

A quartet of advice memos released by the NLRB’s Office of the General Counsel over the past weeks suggests that the NLRB may be backing of its extreme protections of employee social media posts as protected, concerted activity.

  • In Children’s National Medical Center [pdf], the General Counsel recommended the dismissal of a charge brought by a respiratory therapist terminated for updating her Facebook status during an ambulance ride to threaten a co-worker who was committing the cardinal sin of sucking on her teeth:

“[T]here is no evidence to establish concert. The Charging Party did not discuss her Facebook post with any of her fellow employees, and none of her coworkers responded to the posts…. The Charging Party was merely airing a personal complaint about something that had happened on her shift.”

  • In TAW Inc. [pdf], the General Counsel recommended the dismissal of a charge brought by an accountant terminated for refusing to remove a Facebook post which suggested that her employer was engaged in fraudulent accounting practices:

“Even if the Charging Party initially posted the comment in furtherance of alleged concerted activity …, her refusal to remove the comment after the April 18 meeting with the outside auditor was not protected…. [H]er comment suggesting that the Employer was engaged in fraud was false and, after April 18, she knew it was false. Her insistence on retaining the post after knowing it was false is not entitled to protection under the Act.”

  • In Copiah Bank [pdf], the General Counsel recommended the dismissal of a charge brought by a bank teller terminated for off-duty Facebook posts complaining that employees at another branch had “narced” on her:

“The Charging Party did not post her comment on her Facebook page in furtherance of concerted activity for mutual aid or protection. The Charging Party admits that that she was not speaking on behalf of any other employees, nor is there evidence that that she was looking to group action when she posted her comments on Facebook.”

  • In Intermountain Specialized Abuse Treatment Center [pdf], the General Counsel recommended the dismissal of a charge brought by a therapist who took to her Facebook wall to complain about staff meetings, including at least one interaction with a co-worker during which they agreed to use Facebook to “complain about work.”:

“The Charging Party’s Facebook posting was merely an expression of an individual gripe about … a staff meeting that affected only the Charging Party – her removal as the facilitator of her victims group. The posting contained no language suggesting that she sought to initiate or induce co-workers to engage in group action. And the only co-worker who commented in response to the posting stated that he did not think that the Charging Party’s post was an attempt to change anything at work.”

These G.C. memos suggest, as I suggested almost a year ago, that the sky may not be falling in regards to social media and the NLRB. Children’s National, TAW, and Copiah Bank are reasoned opinions on lone-wolf employees who took to social media to air gripes about work, or, in the case of Children’s National, to threaten a co-worker.

Intermountain, though, may have wider implications. One of my key concerns about the NLRB’s foray in regulating workplace social media is that by its very nature, social media is concerted, i.e., does a co-worker’s unsolicited comment or response to a social media post convert lone-wolf conduct into concerted activity? Intermountain suggests that the concerted nature of the social media activity depends on both the intent of the original poster and the understanding of that intent by any subsequent commenters.

These issues are far from settled. Intermountain, though, is a good first step in the right direction to providing employers some much needed clarity in this area. It’s also a welcoming sign that the NLRB isn’t forging ahead with blinders on in this area.

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