Protected Concerted Activity
So, in terms of email and social media communications, what exactly constitutes protected concerted activity under the act? First, the emails or social media posts must discuss the terms and conditions of employment. Second, the communications must be “concerted.”
Employee discussion must actually center on the terms and conditions of employment and not merely consist of communications about what happens at work. 29 U.S.C. § 7; Advice Memorandum from the NLRB Office of the Gen. Counsel to Jonathan B. Kreisberg, Reg’l Dir. of Region 34, on Case No. 34-CA-12950 (July 19, 2011). Terms and conditions can include the following:
- Wages and tax treatment of earnings
- Supervisor and/or coworker conduct
- Working hours and schedules
- Company policies
- Work location or environment (or even cubicles!)
Posts between two or more employees likely qualify as protected concerted activity if the underlying purpose of the messaging is to discuss the terms and conditions of employment. But even a single post by only one employee might qualify if it can be interpreted as an attempt to induce action or response from other employees on the terms and conditions of employment, or to take collective employee issues to management. Examples include the following:
- Bringing group complaints to the attention of management (including via email or social media posts). Alternative Energy Applications, Inc. & David Rivera-Chapman, Case No. 12-CA-072037 (Dec. 16, 2014) (an individual complaint about wages, even though not intended to initiate or support group action, can be “inherently concerted” as wages are a group concern).
- Initiating a thread or discussion with a group of employees about a term or condition of employment. The discussion not need be in an advanced stage; a preliminary thread sharing concerns is protected as long as the underlying discussion concerns terms and conditions of employment. Lafe E. Solomon, Report of the Acting General Counsel Concerning Social Media Cases 2 (Jan. 24, 2012).
- Discussing shared employee concerns about the terms and conditions of employment.
- Criticizing an employee’s job performance or supervisor’s management style in the context of a group email or social media post. NLRB v. Pier Sixty, LLC, No. 15-1841 (2d Cir. Apr. 21, 2017).
Certain actions do not count as protected concerted activity under section 7 of the NLRA: personal griping or complaining, verbally assaulting customers, and threatening other employees.
An employee who uses social media or email to merely gripe about his or her personal, malicious views of a fellow coworker or customer can be properly disciplined or terminated. Bud’s Woodfire Oven & Ralph Groves, Case No. 05-CA-194577 (May 18, 2018). The key inquiry to distinguish griping from protected speech under section 7 is whether the speech is designed to induce collective action as opposed to being a plea for emotional support, or whether an employee’s actions are taken “with or on the authority of other employees.” In other words, the employee must bring “truly group complaints” to the attention of management. A post is a personal gripe if the conversation focuses on ways to cope with the supervisor. Advice Memorandum from the NLRB Office of the Gen. Counsel to Wanda Pate Jones, Reg’l Dir. of Region 27, on Case No. 27-CA-065577 (Dec. 6, 2011).
Furthermore, calling customers “rednecks” and saying that you hope they “choke on glass” are not protected. In JT’s Porch Saloon & Eatery Ltd., Case No. 13-CA-46689 (July 7, 2011), the employee complained to his stepsister via Facebook post about his wages and conditions of employment; but the online complaint was never discussed with other employees, and none responded to, or even “liked,” his posting. Verbally attacking customers is not protected concerted activity under section 7.
Finally, a warehouse worker’s Facebook post saying that he was “a hair away from setting it off” in his warehouse was not protected, and his termination was upheld. Managers said they feared a workplace shooting. Advice Memorandum from the NLRB Office of the Gen. Counsel to Richard L. Ahearn, Reg’l Dir. of Region 19, on Case No. 36-CA-10882 (Sept. 19, 2011).
Employee use of vulgar and shocking language does not automatically destroy the employee’s protections under section 7 of the act if the underlying message is to discuss the terms and conditions of employment. This is especially true where the employer generally allows vulgar language in other contexts. Examples include the following:
- A Facebook status update calling the boss a “dick” and a “scumbag,” posted from a home computer, did not cause the employee to lose the protection of the act. The comment came after the supervisor denied the medic union representation at a workplace meeting, as required by law. Advice Memorandum from the NLRB Office of the Gen. Counsel to Jonathan B. Kreisberg, Reg’l Dir. of Region 34, on Case No. 34-CA-12576 (Oct. 5, 2010).
- A Facebook post that called the employee’s manager a “NASTY MOTHER F***ER” and said “F*** his mother and his entire f***ing family” was not “opprobrious enough” to lose the protection of the NLRA. NLRB v. Pier Sixty, LLC, Case No. 15-1841 (2d Cir. Apr. 21, 2017). The post was publicly accessible, and the employee knew that his post would be visible to his coworkers. Finding that the post was protected, the U.S. Court of Appeals for the Second Circuit explained that though the post contained vulgar attacks, (1) the subject matter of the message included workplace concerns; (2) the employer tolerated widespread profanity amongst its workers, including supervisors, and had never before terminated any employee for such behavior until two days before a union election; and (3) the location of the comments was an online mode of communication among coworkers and was not in the immediate presence of coworkers.
- A Facebook post by an employee venting frustration about the employer’s practice of withholding taxes, calling the owner an “a**hole” and “liked” by a second employee, was protected concerted activity. Three D, LLC, & Jillian Sanzone; Three D, LLC, & Vincent Spinella, Case Nos. 34-CA-12915, 34-CA-12926 (Jan. 3, 2012).
- A group email chain between restaurant workers responding to a former employee complaining about wages, work schedules, tip policy, and the treatment of workers was protected concerted activity. Mexican Radio Corp. & Rachel Nicotra, Case No. 02-CA-168989 (Apr. 20, 2018). The fact that the email contained inappropriate language, and that the workers refused to be interviewed by management about their concerns following the email and skipped or walked out on scheduled shifts, was not “so egregious as to lose protection of the Act.” The NLRB noted that the “email was nonpublic and did not cause a loss of reputation or business for the Respondent,” “there was no disruption of business,” and the employer’s justification for terminating was “pretextual.”
NLRB Interpretations: Going Forward
Although many assumed that the trend in expanding section 7 protections for employees was purely political and that the new administration would repeal the last decade of NLRB decisions, the recent cases of Pier Sixty and Mexican Radio Corp., discussed above, demonstrate that employee section 7 rights will survive beyond a mere political change in the landscape. However, the board seems to be trending toward a more limited approach in interpreting employee handbook provisions and company policies regarding social media and email usage.
As the NLRB began expanding its view of what employee actions were protected under section 7, employers found their handbooks, policies, and procedures being challenged by rulings that condemned policy language addressing social media and email restrictions. The board has found policies limiting employee use of company email unlawful and unduly restricting as employees have a presumptive right to use their employers’ email systems for nonbusiness purposes—such as communications about union organizing, wages, and working condition—during “nonworking time.”
However, the philosophy on that front may be changing. Last June, the NLRB’s Office of the General Counsel (GC) issued a 20-page memorandum (GC 18-04) to the NLRB regional offices titled “Guidance on Handbook Rules Post-Boeing” (June 2018 Memo). In it, the GC noted that the NLRB reassessed the issue of work rules and section 8(a)(1) of the NLRA. The GC further noted that in the Boeing Co. & Society of Professional Engineering Employees in Aerospace decision, the NLRB developed a different test for analyzing workplace policies under the act. In particular, “the Board established a new standard that focused on the balance between the rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline and productivity in the workplace.” The June 2018 Memo also outlines multiple examples of (1) “Rules that are Generally Lawful to Maintain,” (2) “Rules Warranting Individualized Scrutiny,” and (3) “Rules that are Unlawful to Maintain.” Significantly, the GC expressly stated that the NLRB will no longer interpret ambiguities in rules against the drafter. Accordingly, employer policies are now much more likely to be upheld. However, employers should take another look at their policies and handbooks in light of the June 2018 Memo to make sure that they are not de facto impeding employees’ section 7 rights.
On a related note, the NLRB recently signaled that it may begin upholding employer policies with facially neutral restrictions on company email and computer usage in the near future. On August 1, 2018, the NLRB issued a notice inviting the filing of briefs on whether the board should adhere to, modify, or overrule its decision in Purple Communications, Inc., & Communications Workers of America, AFL-CIO, Case Nos. 21-CA-095151, 21-RC-091531, 21-RC-091584 (2014). In Purple Communications, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system on nonworking time for communications protected by section 7. In its notice, the board invited the public to weigh in further on what standard the board should adopt if Purple Communications is overruled.
There are several important conclusions that stem from this discussion.
First, in assessing whether an employee’s comments/posts are protected, employers should consider why the employee made the comment; whether the employee’s post concerns wages, benefits, hours, assignments, or other terms and conditions of employment; and whether the employee’s comments led to or urged an online discussion with coemployees.
Second, employers have attempted to justify terminations based on employees’ use of profanity in emails. Under the Atlantic Steel test, an employer may terminate an employee for engaging in conduct that would otherwise be protected concerted activity if the behavior is “opprobrious enough.” Atlantic Steel Co., 245 N.L.R.B. 814, 816 (1979). However, the board will not apply the Atlantic Steel test to cases involving email or social media—even where the content is particularly vulgar—because the place of discussion is via the internet and not in person.
Third, a court is more likely to find that vulgar public language is protected if the employer consistently tolerates widespread profanity amongst its workers.
Fourth, companies should ensure that policies and handbooks comply with the NLRB’s current guidance on email and social media use and do not interfere with employees engaging in protected concerted activity when off duty. However, while policies prohibiting vulgar and offensive comments need to be sensitive about infringing on NLRA-protected rights, employers should be prepared to enforce those policies in appropriate circumstances.
Finally, employee discipline should not be selectively enforced to prohibit behaviors that relate to union-related activities; discipline should be applied uniformly to all employees.
Jennifer Holly is a senior associate in the Silicon Valley and Sacramento, California, offices of Orrick, Herrington, & Sutcliffe, LLP.