It may be illegal to fire employees who complain about supervisors or working conditions on Facebook and other social media sites, as such complaints probably constitute protected concerted activity.
On April 19, 2013, the NLRB decided Design Tech. Group, 359 NLRB No. 96 (2013), and found that employees’ complaints and discussions on Facebook were a continuation of direct complaints to the employer, and a discussion of the terms and conditions of employment. Therefore, the Board ruled they were protected concerted activity for their mutual aid and protection under Section 7 of the Act.
The company had contended in defense that it had been entrapped by the employees. However, companies are unlikely to prevail on an entrapment defense in these situations, even if the employees appear to desire their own termination. The NLRB noted that employees’ selfish motives do not deprive them of their rights to engage in protected activities. The key tension in this area is whether employees’ complaints/discussions through social media can fairly constitute the classic concerted activity given the global dissemination of their remarks.
*Erin Frankrone is a Summer Associate at Wyatt, Tarrant & Combs, LLP.
In Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (2012), decided July 30, 2012, the NLRB in a 2-1 decision (Members Griffin and Block in the majority, and Member Hayes dissenting), held that an employer representative who was conducting a workplace investigation violated employee Section 7 rights by telling the complaining employee not to discuss the matter with other employees while the investigation was pending.
The NLRB administrative law judge hearing the case stated in his decision:
“During the hearing, General Counsel amended the complaint to allege that Respondent’s confidentiality agreement and interview of complainant form violates Section 8(a)(1) of the Act. The interview of complainant form is not given to employees. During interviews of employees making a complaint, [employer representative] Odell asks employees not to discuss the matter with their coworkers while the investigation is ongoing. I find that suggestion is for the purpose of protecting the integrity of the investigation. It is analogous to the sequestration rule so that employees give their own version of the facts and not what they heard another state. I find that Respondent has a legitimate business reason for making this suggestion. Accordingly, I find no violation.”
The Board panel majority reversed the ALJ and nevertheless found a violation. In dissent, Member Hayes stated:
“Contrary to my colleagues, I would affirm the judge’s dismissal of the allegation that the Respondent promulgated an unlawful work rule prohibiting employees from discussing matters related to an ongoing investigation. It is axiomatic that, to violate the Act, an employer’s work rule must be an actual work rule with binding effect on employees. [Citation omitted]. Here, … the Respondent did not promulgate any rule at all. It merely suggested that employees not discuss matters under investigation. I therefore respectfully dissent.”
It would appear that the Obama Board is now reaching into areas previously thought to be safe ground by HR managers. Whether the courts will enforce such decisions remains to be seen.
One of the most common parts of employers’ employee handbooks is a page which the employee signs acknowledging receipt of the handbook. These pages often contain statements to the effect that the employee acknowledges or agrees that the handbook is not a contract of employment and that the employment relationship is “at-will.” However, recent developments at the National Labor Relations Board call into question the legality of such provisions under the National Labor Relations Act (“Act”), at least if they are not worded very carefully.
In a case decided by an administrative law judge in February of this year involving a major blood bank, the company’s “Agreement and Acknowledgement Receipt of Employee Handbook” form said in part, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” While the judge stopped short of ruling that this language expressly prohibited activity protected by Section 7 of the Act, he nevertheless ruled that it violated the Act because employees could reasonably construe it to prohibit Section 7 activity. The judge agreed with the Counsel for the Acting General Counsel of the NLRB who prosecuted the case, that:
“. . . the signing of the acknowledgement form is essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at-will status. For all practical purposes, the clause in question premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify or alter the at-will relationship. Clearly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights.”
As a remedy, the judge ordered the employer to cease and desist from maintaining or enforcing the acknowledgement form containing the language in question.
Decisions of NLRB administrative law judges do not have the force of law unless and until adopted by the NLRB and enforced by a federal court of appeals. According to the case information on the NLRB’s website, the parties in this case settled after the judge’s decision. So the judge’s decision in this case will not become law. However, it reflects the position of the office of the Acting General Counsel of the NLRB, which prosecuted the case and prosecutes all unfair labor practice cases. It has been reported that more recently the Acting General Counsel issued a similar complaint against Hyatt Hotels, and that case was quickly settled. Thus, it appears that in keeping with the now well known attack on employer’s social media policies, the Acting General Counsel will also be scrutinizing at-will policies. In order to avoid litigation at the NLRB, employers whose employee handbooks or other policies or forms (e.g., application forms) contain at-will provisions should consult with their legal counsel to determine whether or not those provisions can or should be modified to avoid an allegation that they violate the Act.
Wyatt Employment Law Report 