“There are two things I stress,” says Lafe Solomon, the NLRB’s acting general counsel. “The law protects workers if they are discussing terms and conditions of employment and they are communicating with a group. It has to go beyond mere griping by an individual.” Talking about wages, hours or working conditions with others is a protected concerted activity, and it is protected whether the conversation takes place in the lunchroom or via Facebook and Twitter, Solomon says. It is a right given to all workers, unionized or not, in the 1935 National Labor Relations Act.
In the dealership case, the NLRB’s enforcement office found the salesman’s comments about the dealership’s food and beverage selections were legally protected because he was expressing concerns about his workplace and the way the low-end fare might affect sales and commissions. An administrative law judge with the board sided with that conclusion but said the dealership could fire him for posting the accident photos, which had nothing to do with protected concerted activity.
“The cases have been fact-specific,” Solomon says. For instance, NLRB attorneys declined to take up the case of a Walmart employee who was suspended after he went on Facebook to complain about management “tyranny.” The posts were merely an individual gripe and contained no language suggesting that the employee sought to initiate or induce co-workers to engage in group action, according to a report by the labor board that includes the outcome of 14 recent cases. The labor board similarly declined to take up the case of a Walmart employee in Arkansas who said on Facebook that the distribution center where he worked should collapse while certain members of management were inside.
NLRB lawyers also reviewed the case of an employee at a Connecticut-based residential facility for homeless people with mental-health issues. Among her Facebook posts was this exchange:
Employee: Spooky is overnight, third floor, alone in a mental institution, btw Im not a client, not yet anyway.
Friend: Then who will you tell when you hear the voices?
Employee: me, myself and I, one of us had to be right, either way we’ll just pop meds until they go away! Ya Baby! My dear client ms 1 is cracking up at my post, I don’t know if shes laughing at me, with me or at her voices.
Her employer learned of the post through a former client who was a Facebook friend of the employee. The employee was fired because her words were averse to the home’s goal, which was “protecting people we serve from stigma,” the termination letter said. The NLRB declined to take the case because the woman was merely communicating with her friends, solely on her own, about her job, which did not qualify as concerted activity.