Your client calls and says that one of his employees posted complaints about the workplace on Facebook. A bunch of other employees echoed those criticisms and added a few choice criticisms of their own, particularly about management, breaks, staffing, when and how they are paid, etc. Much of the language used was, well, generally not language used in polite company. What really angered your client, though, was the public nature of the postings. The comments were not made on a private Facebook page solely amongst your client’s employees, but rather, on a public page visible to current customers, the media, and the entire world, for that matter. In a flurry of anger, he fired everyone involved. After cooling down a bit, he decided to run this by you, even though the client is certain he was well within his right to fire them all.

Unfortunately, you are now in the uncomfortable position of counseling your client that his employees may have engaged in protected concerted activity pursuant to the National Labor Relations Act (NLRA) and per the National Labor Relations Board’s (NLRB) past decisions, and therefore, he may have prematurely fired those employees. Here’s why.

Concerted social media activity

As we noted in the first article in this series, Section 7 of the NLRA affords employees the right to discuss their wages and other terms and conditions of employment among themselves and with third parties. This protected activity does not change simply because the communications occurred via the Internet or on a social media platform. That being said, to be protected under the NLRA, the employee’s activity must also be “concerted.” Generally speaking, concerted activity “requires two or more employees acting together to improve wages or working conditions.” However, the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others. The test to determine whether an employee is engaged in concerted activity is whether the activity is engaged with or on the authority of other employees and not solely for the benefit of the employee himself. As with protected activities, two or more employees engaging on social media are sufficient to fulfill the “concerted” element.

For example, an employee at a popcorn factory posted on Facebook that there “had been so much drama at the plant.” A second employee posted a comment requesting details, and a third employee joined the Facebook “conversation” and stated that she “hated the place and couldn’t wait to get out of there,” noting that the majority of the issues at the plant were brought on by the operations manager. The employer discharged the third employee for the Facebook comments about the employer and its operations manager. The NLRB determined the termination was unlawful because the employees engaged in concerted activity. The Facebook conversation was a continuation of an earlier group action that included employee complaints about the operations manager, and the discussion involved three employees sharing concerns regarding the terms and conditions of employment.

Similarly, the NLRB determined the discharge of a victim’s advocate employee to be unlawful after she solicited her fellow employees via Facebook for assistance and job performance feedback in preparation for a meeting with management.

Not every employee “like” is concerted activity

Fortunately for employers, the NLRB does not consider all employee social media communications concerted activity. Individual employee gripes, posts complaining about terms and conditions of employment with no language seeking to initiate or induce group action, and posts expressing individual discontent which are “liked” by fellow employees were found to not be concerted activity under the NLRA.

In one case, an employee in a retail store posted a complaint about the “tyranny” of the employer and wrote that the employer was about to get a “wake-up call” because other employees were about to quit. Several co-workers responded to this post and asked the employee why he was so “wound up.” The employee replied that the assistant manager was a “super mega puta” and complained about being “chewed out” for misplaced and mispriced items. Co-workers responded with supportive Facebook comments such as “hang in there.” The employer imposed a one-day paid suspension and precluded the employee from any promotion opportunities for 12 months because of the social media post. The NLRB upheld the employer’s action finding that the employee simply expressed an individual gripe, and that his posts contained no language seeking to initiate or induce coworkers in group action.

Similarly, a phlebotomist posted a number of angry, profane comments on Facebook against coworkers and her employer. Her Facebook posts indicated that she hated people at work, that they blamed everything on her, and that she wanted to be left alone. A coworker commented that she, too, had gone through a similar situation at work. The employer terminated the phlebotomist. The NLRB determined the termination was lawful, despite the coworker’s supportive post. The NLRB reasoned that the postings were made solely on the employee’s own behalf, did not involve sharing of common concerns, and contained no language seeking to initiate or induce coworkers to engage in group action.

Deciphering concerted v. unconcerted social media activity

So, how do you distinguish between what is concerted activity and what is not? The examples above are just a few of the cases addressed by the NLRB. There are many nuances in these employee social media cases, and the law continues to develop. Companies should consult with their in-house attorneys and compliance departments to fully understand the application of the NLRA to their business and the applicable laws within their jurisdiction. Because social media employee cases are extremely fact specific, a consultation with outside counsel proficient in this area of law may also be helpful to thoroughly evaluate the risks involved in particular employee social media activities.

Armed with this knowledge, you now know that your client may have pulled the trigger too quickly. Instead of shooting first, asking his lawyer later, it would have been wise of your client to contact you prior to firing those employees. On the bright side, now that you are fully up-to-speed on concerted activity under the NLRA, you now have plenty of time to research and advise your client of how to respond to the imminent wrongful termination lawsuit.