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NLRB: Not All Employee Facebook Posts Deserve Protection After All

Posted in Highlight, Labor Law & NRLB, Social Media

Last fall, the NLRB made headlines when it brought a complaint against a Connecticut employer for disciplining an employee for her Facebook posts. Back then, some commentators wondered what the limits were going to be.

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But over the last few weeks, quietly, we’ve been getting some of the answers. Just not in the format you’re used to.

Just recently, the NLRB issued an three Advice Memoranda to local regions suggesting that employers did not violate federal labor laws when they punished employees for their Facebook posts and social networking activity.

Seth Borden, at Labor Relations Today, does a real good job summarizing each of them here and you can read them here, here and here.

At the core of each of these memos is an understanding that federal labor laws only guard “protected concerted activity”.  Personal complaints outside of the workplace aren’t enough to satisfy this standard.

The key language, as Seth points out, can be found in one of the memos:

An individual employee’s conduct is concerted when he or she acts “with or on the authority of other employees,” when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings “truly group complaints to the attention of management.” Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee self-organization.’” On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted.

This is not a surprising outcome; indeed, in my recap of a session with the local NLRB director a few months ago, I noted that the agency was likely to come out with more decisions outlining what “protected concerted activity” meant.  These newly-released memos simply make that point clear.

For employers, understanding what conduct is protected and not, can make the difference between becoming the next headline or the next dismissed case statistic.