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Emerging Employment-Related Issue: Protected Concerted Activities

Posted on Fri, May 18, 2012 @ 02:40 PM

Alexis L. McDanielby Alexis L. McDaniel

Imagine you’re the general manager of a luxury car dealership.  One day, after browsing through pictures of your children on Facebook, you notice a posting made by one of your salesman criticizing what he describes as the cheap food of hot dogs and chips you provided at your recent sales event.  Although no other salesman commented on the posting, prior to this incident, the salespeople met with management to discuss their concerns about the event.  Infuriated by the posting, you want to fire your salesman on the spot, but should you? 

No, not according to the decision in Karl Knauz Motors, Inc., Case No. 13-CA-46452 (September 28, 2011).  In this case, an ALJ found that the critical comments made by the salesman were protected concerted activities because “food offerings” could have affected car purchases and thereby wages of salespeople.

Under Section 7 of the National Labor Relations Act (“NLRA”), an employee has the right to engage in protected concerted activity and the National Labor Relations Board (“NLRB”) has provided guidance on what this entails.  Based on these guidelines, the following are examples of protected activities:

  • Two or more employees addressing their employer about improving their working conditions or pay;
  • One employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions; and
  • Two or more employees discussing pay or other work-related issues with each other. 

Prior to the emergence of social media, questions regarding concerted activities were typically confined to the work environment.  For example, a supervisor might overhear Joe and Jane discussing their salary near the water cooler.  Even if the employer considered employee salaries a confidential matter, Joe and Jane’s discussion would be protected under Section 7 of the NLRA.  Now, with websites like Twitter and Facebook, employees have often moved beyond their own work environment and into the world-wide audience these social websites provide.  The end result is a tension between an employer’s concern of negative publicity and loss of business, with the employees’ right to engage in protected concerted activity. 

Although it will take some time before the new social media cases are decided by the NLRB and reviewed by the courts, in two reports, dated August 18, 2011 and January 24, 2012, the Acting General Counsel of the NLRB discusses principles to determine whether an employee’s social media activities are protected.  These emerging principles include the following:

  • By intent or result, employee conduct on social media must involve group activity relating to terms or conditions of employment. 
  • Employee social media posts that directly solicits co-workers or tries to promote group action regarding a term or condition of employment will be protected.
  • Employee social media post that suggests an intent to promote group action or support will likely be protected.
  • Employee social media post that does not expressly solicit co-worker action or support may still be protected if it generates a substantive conversation about terms and conditions of employment. 
  • Post that is not directed to co-workers, or does not address issues of mutual concern to other employees, will likely be viewed as unprotected griping. 
  • Disparaging comments about an employer or supervisors are generally protected unless they:
  • are not related to a dispute over working conditions
  • are maliciously defamatory
  • focus solely on company products or business policies
  • appeal to racial, ethnic, or similar prejudices

It all boils down to this—an employer must be careful when responding to an employee’s social media posting.  There can be severe consequences for an employer that does not take the appropriate steps to evaluate whether a social network posting is protected concerted activity under the NLRA.

Check back often, as there will definitely be new developments to this ongoing issue.

Tags: Social Media, Twitter, NLRA, National Labor Relations Act, Protected Concerted Activity, Facebook