As 93% of employers in the private sector are non-unionized, many of them are surprised to learn that Sections 7 and 8(a)(1) of the National Labor Relations Act ("NLRA") apply to them. Specifically, Section 7 (29 U.S.C. § 157) sets forth employees’ right to self-organization, to form or join labor organizations, to bargain collectively and "to engage in other concerted activities for the purpose of ...mutual aid or protection." Section 8(a)(1) (29 U.S.C. § 158(a)(1)) is the enforcement mechanism, making it an unfair labor practice to “restrain or coerce employees in the exercise of rights guaranteed in section [7].”
As illustrated in two Reports recently issued by the Acting General Counsel of the National Labor Relations Board ("NLRB")(links to the two Reports may be found at https://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report) , Sections 7 and 8(a)(1) not only apply to private employers, they are being interpreted to limit significantly an employer's right to discipline or discharge employees who post, tweet or blog negative things about their job, supervisors, co-workers or working terms and conditions. If the employee's posts constitute "collective activity," they are protected; if the posts do not constitute collective activity, they generally are not protected, and may serve as the basis for discipline or discharge.
The $64,000 question, therefore, is when employee activity on social media constitutes collective activity. An employee’s action is "concerted" where: (1) he or she acts with, or on the authority of other employees and not solely by and on behalf of the employee himself; (2) individual employees seek to initiate or to induce or to prepare for group action," Meyers Indus., Inc., 281 N.L.R.B. 882, 887 (1986); or (3) an employee’s action is a "logical outgrowth" of previous group activity. Every Woman’s Place, Inc., 282 N.L.R.B. 413, 413 (1986). On the other hand, merely “private gripes” are not concerted.
In reality,the line between private gripes and collective activity is a very difficult one to draw. The 28 examples given by the NLRB in its two Reports, unfortunately, do not materially advance the cause of clarity in that regard; indeed, the Board decisions set forth in the Reports are, arguably, inconsistent in some instances. Still, the Reports do reveal certain general principles, namely that employers should consider the substance, motive, context and effect of an employee's posts before deciding whether to take disciplinary action or discipline on the basis of them.
Of these factors, the most importantone in the Board's view appears to be the effect of the posts or other social media activity, i.e. did they actually spark discussion or action on the part of other employees regarding work terms and conditions, whether in the form of other social media commentary or in person discussion or action? If so, the activity will likely be deemed concerted and protected regardless of whether the employee's motives as reflected in the language of the post appeared selfish or singular. Of course, given the importance of the effects of employee social media activity, cautious employers will likely wait to determine what, if any, effects the activity has on co-workers before proceeding.
The Reports also have much to say about the terms contained in many employer social media policies. Overbroad policies can violate Section 8(a)(1) of the NLRA, as they are likely to chill employees in the exercise of Section 7 rights, whether discipline is taken pursuant to them or not. In fact, the Reports indicate that many standard social media policy terms (e.g. prohibitions against unprofessional or disparaging remarks, prohibitions against revealing confidential information) are overbroad, notwithstanding generalized disclaimers. Accordingly, employers should revisit their social media policies to make sure they comply with the law as interpreted by the Board.
