Section 7 of the National Labor Relations Act (NLRA) protects employees, among other things, from termination for engaging in concerted activity. All employees, union and non-union alike, have the right to engage in “concerted activities for the purpose of . . . mutual aid or protection.” Generally, activity is “concerted” if it is engaged in with or on the authority of other employees and it is “protected” if it concerns employees’ interests as employees. That is, employees working together to address things like work conditions, treatment, workload, hours, and pay would be protected.
In the age of social media, there has become increasing focus on the scope of “concerted activity” and employers’ ability to terminate or otherwise discipline employees for negative social media posts. Recently, the NLRB held in Pier Sixty, LLC and Hernan Perez and Evelyn Gonzalez that an employee’s offensive Facebook post about his boss was protected concerted activity under Section 7 of the NLRA. The employee, who was upset with his supervisor for treating he and his coworkers unfairly and in a demeaning manner, posted the following in his personal Facebook account after a negative interaction with his supervisor:
Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
Coworkers, both current and former, commented on the post. The employee later deleted the post and comments after a previously-scheduled union election. The company, though, initially suspended the employee and ultimately terminated him for violating the company’s anti-harassment policy.
On review, the NLRB determined that the employee’s termination was unlawful. The latter portion of the post, specifically addressing the union vote, was clearly protected concerted activity. But even the obscene comments about his supervisor, according to the NLRB, constituted protected concerted activity. To arrive at that conclusion, the NLRB noted that the post was in response to perceived mistreatment and that mistreatment by management was one of the reasons behind the union organizing campaign and election.
Whether negative, or even vulgarity-laced, social media posts by employees constitute protected concerted activity under Section 7 will require case-by-case consideration. What remains clear, though, is that employers must carefully consider their responses to negative online postings.