JDs Rising

By Francis Rojas

Weaving around in social internet media for a short time is all you need to find out an exceptional amount of information about any given individual.  Try googling yourself.  Just searching for a name gives an infinite amount of trivia regarding any one person.  You can find out where they went to high school, college, graduate school.  You can find out where someone has worked and is currently working.  You can also find out their views, affiliations, and more.

We often hear about this, as a weapon employers use to scope out job applicants.  It only takes a few minutes.  A very simple search will tell you if a candidate is a reliable individual, or if it is an individual with several partying pictures online.   

Take Facebook, for instance.  If you have a Facebook account (or any equivalent social media account), ask yourself: how many friends do you have?  50 friends? 200 friends?  Are you totaling over 500 friends? Do these friends include your supervisor? Your coworkers?

Stop and think now, of a very apparent dilemma- what are you exactly saying to all of your closest 500 friends?  As I glanced over Facebook, it was very apparent to me that people tend not to think too carefully about what is posted online.  So if you make a “status update” complaining about work safety, you just announced your distress with 500 other people, which probably includes your boss, supervisors, or coworkers.  What if your client gets fired for writing that comment?

Well, that brings up a new wave of fascinating scenarios – the interpretation of the National Labor Relations Act (“NLRA”)[1] to the internet.  Basically, the NLRA guarantees specific rights to employees[2] covered by the Act.  Section 7 provides,

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…[3]

In order to protect these rights, the NLRA deems an employer engages in an unfair labor practice when it “interfere[s] with, restrain[s], or coerce[s] employees in the exercise of the rights guaranteed in section 7.”[4] Protected concerted activity may occur in a union or a non-union setting.[5]

So the first question that bears to mind is: what is concerted activity?  Concerted activity (which may or may not be protected) is not a purely individual conduct of a single employee.  Concerted activity focuses on an employee activity undertaken together by two or more employees[6] or by one employee on behalf of others[7].

So going back to our Facebook dilemma, an investigation as to the comment and circumstances of the comment is vital.  Did your client make the comment regarding work safety on behalf of others?  Were several employees making these comments and talking about safety concerns?

After a careful review of the facts, the second question bears in mind.  Is this concerted activity protected?  The NLRA deems concerted employee activity as protected when it can reasonably be seen as done for the purposes of collective bargaining or affecting the terms or conditions of employment.

A concern about work safety clearly goes towards the terms or conditions of employment.  However, what if your client had not complained about work safety, but about the supervisor’s demeanor?  What if the complaint was about how an opinion was taken by management?

What if you knew that the employee had complained about the employer not doing enough for the clients, and various employees joined in complaining about staffing issues and work load?[8] What if when the employer found about these comments, the employer terminated these employees?  The National Labor Relations Board (“NLRB”) recently announced that it issued a complaint regarding this specific issue, which was set to be heard by an Administrative Law Judge on July 13, 2011 if it didn’t settle beforehand.[9]

So the run down is simple.  It appears that protected concerted activity applies in social media as well.  Where employees interact with their coworkers or management, and speak freely, these statements may indeed be protected.  Facebook (or any other social media) may just be like standing at the water cooler.  Where 500 of your closest friends can hear, participate, and chime in regarding workplace issues.

[2] 29 U.S.C. § 152 (3) provides: “The term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined.”

[3] 29 U.S.C. § 157 (emphasis added).

[4] 29 U.S.C. § 158(a)

[5] Citizens Investment Servs. Corp., 342 NRLB 316 (2004), aff’d, 430 F.3d 1195 (D.C. Cir. 2005) (investment consultant employed by a large financial institution unlawfully discharged for protected concerted activity); KNTV, Inc., 319 NLRB 447 (1995) (discharge of television news reported for engaging in protected concerted activity was unlawful).

[6] In Meyers Indus. (“Meyers I”), 268 NLRB 493 (1984), remanded sub. nom., Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), the NLRB noted that although the legislative history of Section 7 of the NLRA does not define “concerted activity,” it does reveal that Congress considered the concept in terms of individuals in pursuit of a common goal.

[7] In Meyers Indus. (“Meyers II”), 281 NLRB 882 (1986), enf’d sub. nom., Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), the NLRB made it clear that a single employee could engage in concerted activity under Section 7 of the NLRA.  An individual employee’s activities are concerted when they grew out of a prior group activity.  Every Women’s Place, 282 NLRB 413 (1986).  An employee’s activities are also concerted when the employee acts on behalf (formally or informally) of a group.  Oakes Machine Corp., 288 NLRB 456 (1988).

[8] http://nlrb.gov/news/complaint-issued-against-new-york-nonprofit-unlawfully-discharging-employees-following-facebook

[9] In late 2010, the NRLB also issued another complaint in a similar Facebook case, which appears to have been settled.  See http://www.nytimes.com/2010/11/09/business/09facebook.html?_r=1&hp.