Despite changes to the composition of the National Labor Relations Board over the past year, the NLRB’s position with regard to protection of employee social media discussions remains unchanged. Last month, the NLRB affirmed a decision that an employer wrongfully terminated an employee for Facebook comments regarding safe work practices after his co-workers complained about the substance of the comments.
In North West Rural Elec. Cooperative, the employee was an electric utility lineman who went on a Facebook forum for line workers and made comments critical of overall industry safety practices. These comments apparently upset several of his co-workers who reported them to management. The employer terminated the plaintiff, citing policies that prohibit rude behavior or conduct not in the best interests of the company. He then filed a NLRB complaint, claiming that the termination violated his right to engage in concerted activity.
The NLRB had little problem upholding the administrative law judge’s decision that this termination violated the employee’s rights. When Facebook or other social media posts involve discussion with co-workers about terms and conditions of employment, they constitute protected concerted activity. Discussion of safety issues can be considered inherently concerted and therefore protected. The employer’s reliance on broad conduct policies to justify the termination rendered those policies illegal, and the NLRB ordered that they be rescinded as part of its judgment.
Employers should not interpret recent employer-friendly NLRB pronouncements as a signal that the board intends to revisit all decisions made over recent years. In this case, the NLRB clearly indicated its approval of expansion of protected concerted activity rights to social media communications.