To recap:  in the last 6 months, the General Counsel’s Office of the NLRB has issued two reports on cases that arose because of social media postings by employees.  A total of 28 cases are described in these two reports.  In most of the cases an employee was fired because of something they posted on Facebook.  Most of the cases concerned one or two issues:  was the employee fired or disciplined in violation of their right to engage in protected concerted activity under the National Labor Relations Act (“NLRA”) and/or does the employer have a social media policy that infringes on its employees’ right to engage in protected concerted activity under the NLRA.   In almost all of the cases, there was no union involved.  The United States Code sections governing these claims are 29 U.S.C. §§ 157-158 or sections 7 and 8 of the NLRA.

So what guidance do these reports provide to an employer who wants to fire an employee over something the employee has posted online?  Probably the best one can say is that, under certain circumstances, employers can discipline employees for online postings (e.g., Facebook) without violating the NLRA.  The General Counsel’s Office did not find a violation of the NLRA in about half of the cases concerning employee discipline described in the reports.  As usual, however, the specific facts of each case will determine whether the employer has or has not violated the NLRA.

The General Counsel’s office seems to be okay with employers disciplining employees who post nasty comments about supervisors or other employees as long as it is a personal gripe and not one in any way related to the terms and conditions of employment that are of interest to other employees.  Unfortunately, it is not always clear when one person’s gripe becomes another person’s concerted activity.  For example, in one case the General Counsel found that a salesperson of a car dealership who complained on Facebook about the refreshments served at a sales event was engaging in protected concerted activity because the choice of refreshments could affect future sales, and thus commissions, and other sales people had raised the issue.  In another case, however, (#3 in the second report) the General Counsel found no violation when a bartender was fired because she had complained on Facebook that another recently hired bartender was making premix drinks, but charging customers the price for drinks made from scratch with more premium liquor.  The fired bartender later stated that she was concerned about the effect the quality of service would have on customers and on her income.  At least one co-worker posted agreement with the Facebook posts and there had been some discussion among coworkers about how the new bartender was making more work for them.  It is hard to see the “fine” distinction between these two cases.  (BTW, the car dealer case went before an administrative law judge who decided in favor of the dealership, but on other grounds.)

Obviously, any employer faced with a decision about an employee because of what the employee has posted online should seek advice of counsel.  In my next post, what do the General Counsel’s reports ”teach” about social media policies?