Let’s suppose you go to Facebook and start posting critical comments about your boss. If he finds out, does federal labor law protect you from being fired or disciplined?
Sorry folks, but the lawyer in me resists, with good reason, a yes or no answer. Here’s why:
National Labor Relations Act
The National Labor Relations Act (NLRA), the main federal law governing labor unions, collective bargaining, and collective worker action, makes it an unfair labor practice to retaliate against employees who “engage in…concerted activities for the purpose of…mutual aid or protection.” Typically this provision of the law is invoked when, say, workers are attempting to form a union or banding together to address issues of pay and working conditions.
The emergence of social media sites such as Facebook has led the National Labor Relations Board (NLRB), the federal agency charged with enforcing and interpreting federal labor law, to address whether workers’ online communications about their bosses and working conditions are protected forms of concerted activity.
NLRB’s Facebook and other social media cases
Last year, the NLRB’s acting general counsel, Lafe Solomon, collected 14 relevant decisions issued by the agency’s Division of Advice and summarized them in a detailed memorandum. Here is the NLRB’s summary of that memo:
In four cases involving employees’ use of Facebook, the Division found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected.
In one case, it was determined that a union engaged in unlawful coercive conduct when it videotaped interviews with employees at a nonunion jobsite about their immigration status and posted an edited version on YouTube and the Local Union’s Facebook page.
In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media.
You can access the full memorandum here.
In essence, there are three important questions to ask in determining whether employee activities will be protected under this provision of the NLRA:
1. Was the activity truly concerted within the meaning of the NLRA? Activity not intended to enlist the support or participation of co-workers likely falls outside of the reach of the law.
2. Was the activity for mutual aid or benefit? Talk about wages and working conditions very likely meets this standard, while gossiping about a supervisor’s personal life probably does not.
3. Was the activity of a protected nature? Constructive criticism of wages and working conditions is probably protected, whereas filling up a website with vile epithets about a boss is not.
Many workers are not protected by the NLRA
In addition, it is vital to note that many workers are not covered by the NLRA. Expressly excluded from coverage are supervisors, independent contractors, domestic and agricultural workers, and family member employees. In addition, the U.S. Supreme Court has held that managerial and confidential employees are excluded as well.
All told, some 40 percent or more of the American workforce is not protected by the NLRA, including the concerted activities provision cited above.
So, for example, if you’re a mid-level manager at a local retail store who reads this and thinks, “hey, I’ll go on Facebook and complain about the CEO,” there’s a good chance you’re not covered by the NLRA.
Possible protections for anti-bullying advocates, but ask a labor lawyer first
Based on this assessment, the NLRA may provide legal protections for workers who are raising concerns with co-workers about bullying behaviors, including exchanges on sites such as Facebook. However, this assumes the activities are truly “concerted” within the meaning of the law and that the workers are not exempt from the protections of the National Labor Relations Act.
In any event, I strongly urge workers considering federal labor law as a source of legal protection to seek the advice of a qualified labor lawyer, rather than blithely making the assumption that they are covered.
If you surf the Internet for articles about the NLRB’s social media decisions, you’ll read headlines suggesting that you now have a blanket right to criticize or complain about your boss on Facebook. I hope this article has alerted you to the hazards of making that assumption.
Obligatory but important disclaimer: This post is not intended as legal advice, and it is provided for informational purposes only. There are serious potential pitfalls for employees and employers alike in dealing with this body of labor law, and a summary of a few hundred words cannot replace legal advice tailored to a specific situation.
If you are in a situation that raises issues under federal labor law, consult a labor law attorney for an assessment of your rights and responsibilities.
The National Labor Relations Act and workplace bullying
I explored the potential application of the National Labor Relations Act to bullying situations in my first law review on workplace bullying and American employment law, David C. Yamada, “The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection,” 88 Georgetown Law Journal 475 (2000), at pages 517-521. The entire article can be downloaded without charge, here.
Employee free speech rights
For those who want to learn more about employee free speech rights in the private sector, this slightly dated but still informative law review article may be of interest: David C. Yamada, “Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial Workplace,” 19 Berkeley Journal of Employment and Labor Law 1 (1998), which can be downloaded without charge, here.