As reported earlier this year, labor and employment lawyers and human resource personnel look to new decisions to help shed light on one of the fastest growing issues for employers—managing employee use of social media.

Earlier this month, the NLRB Acting General Counsel Lafe Solomon issued a report concerning nine recent cases that the agency investigated dealing with social media issues.  The focus in each of the cases: whether the online communications between employees conversing about working conditions was considered “concerted activity”.  If so, the communications are protected under the National Labor Relations Act (“NLRA”).  Thus, the involved employee(s) cannot be disciplined.  In four of the cases where a decision was issued, the agency found that employee Facebook messages constituted protected concerted activity.  However, in five cases decided, the agency found the activity was not protected.

So what is the difference between the communications in these cases?

The key in these cases was whether the communications were between coworkers seeking assistance with regard to working conditions.  The topics included:

  1. preparation for a discussion with management about job performance and staffing levels;
  2. the right in a unionized workplace to union representation during the employer’s investigatory interview;
  3. employer’s conduct that could impact employees’ compensation; and
  4. the employer’s administration of income tax withholdings.

For example, in a situation where employees at a nonprofit corporation discussed their job performance on Facebook before a meeting with management, the decision cited the conduct as a “textbook” example of concerted activity–“[t]he discussion was initiated by the one coworker in an appeal to her coworkers for assistance.”  Thereafter, on September 2, 2011, in an unprecedented decision, a judge with the NLRB ruled that the non-profit must rehire all five of the employees.

In contrast, an employee’s Facebook postings about a manager were individual gripes and not concerted activity.  After an interaction with a new Assistant Manager, the employee posted a comment complaining about the workplace and suggesting that the employer would get a wake up call because lots of employees are about to quit.  Although several coworkers responded to his comment and expressed emotional support, the agency determined that this was not concerted activity because the comments “contained no language suggesting that the employee sought to initiate or induce coworkers to engage in group action; rather they expressed only his frustration regarding his individual dispute with the Assistant Manager over mispriced or misplaced items.”

As highlighted by the split in cases, there is no bright line test for employers to follow when determining whether discipline based on social media use is proper.  In addition, because the board’s rulings involve interpretations of the National Labor Relations Act which covers both unionized and non-unionized workplaces in the private and non-profit sectors, both public and private employers should be cautious not to automatically move for termination when dealing with social media issues without first analyzing the substance and purpose of the online communications.