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We’ve all read or heard about people who have been “Facebook fired” or reprimanded for making disparaging posts or comments on social networking sites. Social media can be a great tool for sharing news about your business and as a place for your employees to connect, but it can create problems as well. As of April 2017, data analytics company Statista shows 219 million registered Facebook users in the United States. Undoubtedly, at least one of those registered Facebook users (or registered users on other social media sites) is your employee. Facebook or other social media venting is commonplace, whether the venting is about other drivers on the road, family drama, or work issues. So, what happens when an employee vents about issues in your workplace or their manager on their social media platform? Can their venting go too far and be actionable? The answer, like many other legal and compliance issues, depends on the facts and circumstances.

On April 21, 2017, the 2nd Circuit issued its decision in NLRB v. Pier Sixty, LLC, No. 15-1841 (2d Cir. April 21, 2017). In this case, the 2nd Circuit considered, in part, whether to enforce the National Labor Relations Board (NLRB) decision that an employee’s comments on Facebook about management, which were made during work hours, amounted to “protected concerted activity” and were not so egregious to take an employee outside the protections of the National Labor Relations Act (NLRA).

The conduct in question occurred just days before employees voted to unionize, when relations between management and employees were strained. Two employees received directions from a manager in a manner one employee found disrespectful. Less than an hour after receiving the instruction, and while still at work, the employee wrote a post on Facebook that included profane language directed at the manager, his mother, and his entire family. The post also encouraged other employees to vote to unionize. Approximately two weeks later, he was fired and filed a charge with the NLRB alleging retaliation for “protected concerted activities.”

Section 7 of the NLRA protects an employee’s right “to engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection,” while sections 8(a)(1) and 8(a)(3) of the NLRA generally prohibit employers from firing an employee engaged in such activities. An employee can lose these protections if his or her behavior is considered abusive.

Due to the prevalence of social media usage and its potential impact on the workplace, the NLRB General Counsel’s office issued new guidance regarding employer social media policies, and the NLRB adopted the nine-factor “totality of the circumstances” test, to evaluate whether an employee’s use of social media is protected under the NLRA. The test includes, among other factors, the subject matter of the conduct, whether the employer considered similar content to be offensive, and the location of the conduct.

In this case, because the employee’s comments included statements about union behavior, the use of profanity in the workplace was common, and the comments were not a “public outburst” under these facts and circumstances, the court agreed with the NLRB that the employee had engaged in protected concerted activity and had not lost that protection by the nature of his comments. The court did, however, warn that the employee’s conduct “sits at the outer-bounds of protected, union-related comments.”

What does this mean for employers?

  • Because the NLRB has used the totality of the circumstances test in other recent social media cases, employers should consider applying this test when making employment decisions as the time, place, location, surrounding facts and circumstances, and the workplace environment may all impact whether an employee’s social media comments or posts are protected under the NLRA.
  • Review employment policies related to social media use.
  • Work with labor law counsel to evaluate the facts and circumstances, along with any relevant state laws, prior to taking any negative employment action, up to and including termination of employment.