Could One Board’s Concerted Activity Be Another Board’s Online Trolling?

As Paul McCartney once sang, “It’s a fine line between recklessness and courage.” And when employees post comments on social media about workplace issues, the line separating legitimate complaints from abusive language, insubordination, or unacceptable public disparagement can be hard to define.

In recent years, the National Labor Relations Board has increasingly dealt with workers’ online employment-related discussions, attempting to distinguish between protected activity under federal labor law and discipline-worthy misconduct. During the Obama administration, when a majority of NLRB appointees were Democrats, rulings in this area often favored workers.

However, many employers have argued that management has a right to take disciplinary action when workers make online comments with the potential to harm legitimate business interests. Those employers can now expect a more sympathetic ear with the labor board’s new Republican majority under President Donald Trump. 

Protection for Online Discussions

Under Section 7 of the National Labor Relations Act, employees have the right to engage in concerted protected activity, which includes employee discussions about working conditions. In the last decade or so, these types of discussions have increasingly occurred online as social media has become a common platform for the exchange of thoughts and ideas.

As such, the NLRB has had to address the question of whether activities on social media that directly challenged an employer’s position on concerns relevant to the workplace could be considered fireable actions due to the more public nature of social media as opposed to a gathering that only included employees.

In a 2014 decision involving two employees who were fired by the Triple Play Sports Bar following a work-related discussion on Facebook, the NLRB ruled that such conversations taking place on social media were covered by Section 7 as long as they weren’t so disloyal, reckless, or knowingly untrue that they’d warrant termination under otherwise normal circumstances. The NLRB also made it clear in a separate decision that protected activity on social media does not extend to outright insubordination.

While the new labor board with its Republican majority is likely to revisit past decisions favorable to employees, the Triple Play case is strengthened by the fact that it was upheld by the U.S. Court of Appeals for the Second Circuit, according to Julia Campins, an employee-side attorney with Campins Benham-Baker, PC, a Lafayette, Calif.-based law firm. 

Campins spoke on the subject of social media at the American Bar Association’s 11th Annual Labor and Employment Law Conference in Washington. In a follow-up interview, she said the Second Circuit’s unpublished decision in Triple Play doesn’t have the same binding authority as a published opinion, “but it certainly does extend its capacity to have a life beyond the board.” 

Access to Employer Email Systems

On the other hand, legal experts believe that an NLRB precedent on worker access to employer email systems is likely to face a stronger challenge. The ruling that created the precedent is Purple Communications, which the NLRB held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

Management attorneys can raise persuasive legal arguments as to why employers should have the authority to limit employee access to company-owned systems and equipment, but Campins looks at the issue in the context of how employees currently communicate with one another.

“The workplace is no longer just face-to-face. Employees are interacting extensively on platforms such as email and social media,” she said. “Restricting their virtual communications during nonworking times is no different than restricting their face-to-face communications during such time—it implicates concerted activity and the right of employees to band together to improve their working conditions.”

Policies on Workplace Recordings

Controversy also swirls around restrictions on audio or video recordings and photography in the workplace. Campins said employees need to be very cautious in this regard, because some states have laws against surreptitious recording of private conversations, and the definition of “private” can take into account a number of factors.

“It’s tempting, with your phone at your fingertips, to stick it in your bag or pocket and press record,” but that’s unlawful in many states, Campins said.

According to NLRB Member Lauren McFerran (D), who also spoke during the recent ABA conference, the act of recording can be protected under federal labor law if it is done in the interest of workers and involves terms and conditions of employment, and if there are no overriding employer concerns.

In keeping with this view, the board has found employers in violation of the NLRA for imposing broad policies that ban employee recordings at work. Moreover, two NLRB rulings against such policies were recently upheld by the Second and Fifth Circuits.

Notwithstanding her state law concerns, Campins agreed that workplace recording bans can stifle the exercise of protected rights.

“Employees frequently try to enforce their rights by gathering evidence that there is unlawful behavior in the workplace,” Campins said. “Given that so much unlawful behavior takes place orally, recording would be a good way to gather evidence and enforce rights, assuming it is otherwise lawful.”

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