What Some Would Call Harassment, the NLRB Calls Protected Concerted Activity

Thursday, January 10, 2013

By Katy Rand

Last month, the National Labor Relations Board (NLRB) issued its latest opinion on the scope of employees’ Section 7 rights while posting on social media sites like Facebook.  Hispanics United of Buffalo, which involved the termination of five non-union employees for what the employer concluded was on-line harassment or bullying of a co-worker, reminds employers to slow down and consider Section 7 of the National Labor Relations Act (NLRA) before disciplining employees for work-related speech on-line.

The on-line banter among co-workers at issue in this recent NLRB decision began when an employee, Lydia, criticized the work of several of her co-workers.  One of the criticized employees, Marianna, fired back, sending a message to the subjects of Lydia’s criticism:  Lydia . . ., a coworker feels that we don’t help our clients enough . . . I about had it!  My fellow coworkers how do u feel?

Her co-workers had also apparently “had it” and posted messages on Marianna’s Facebook page from their personal computers, telling Lydia off.   These postings prompted Lydia herself to weigh in, demanding that her co-workers “stop [their] lies . . . .”  Lydia then complained to her supervisor, citing the employer’s “zero tolerance” policy against “bullying and harassment.”  After reviewing the Facebook messages, the employer agreed with Lydia and terminated all five of her co-workers, who then filed charges with the NLRB, alleging their on-line banter was protected concerted activity for which their employer could not lawfully discipline them.

The NLRB quickly dispensed with the notion that it made any difference to the analysis that the complainants’ speech was on Facebook, as opposed to at work.   The dissent, authored by Member Hayes, noted there was a “meaningful distinction between sharing a common viewpoint and joining in a common cause” and found “insufficient evidence that either the original posting or the views expressed in response to it were for mutual aid or protection.”  Unfortunately for the employer, Member Hayes’ view was rejected by the other members, who concluded that the postings had the “clear ‘mutual aid’ objective of preparing [the] co-workers for a group defense to [Lydia’s] complaints” related to the employees’ job performance, and therefore constituted protected concerted activity under Section 7 of the NLRA.  

This latest decision in a series of NLRB decisions involving non-union employers is a helpful reminder that even non-union employees have the right, under Section 7 of the NLRA, to engage in concerted activity for their mutual aid or protection.  This decision teaches that the current Board interprets “mutual aid or protection” broadly, to include virtually any discussion among co-workers about wages, hours, or working conditions.  In the end, employers are wise to exercise caution whenever inclined to base an employment decision on what an employee has posted on-line, ideally consulting counsel about whether, under recent NLRB precedent, Section 7 of the NLRA immunizes the employee from consequences for his or her speech.

If you have questions about the NLRB’s recent decisions concerning the scope of Section 7 of the NLRA or social media policies, please contact Katy Rand at krand@pierceatwood.com or another member of Pierce Atwood’s Employment Practice Group.