In April's HR Tip, we discussed protections all employees have under the National Labor Relations Board (NLRB) whether the company is unionized or not, namely concerted activity, an employee's discussion of or protest against working conditions. Recent court cases have shown us that the path is still not clear regarding inflammatory Facebook posts by employees about their jobs.

A recent case involving a Chicago-area car salesperson helps to somewhat clarify the line between inappropriate comments and concerted activity. In one Facebook post, the employee complained about a marketing event, fearing that the overcooked hot dogs and other cheap food served could hurt his ability to attract high-end customers and earn commissions. At least one coworker responded to the post, also expressing concerns.

In a separate post by the same employee, he displayed a picture of a wrecked vehicle on a neighboring lot owned by the dealership, including a caption criticizing the consumer who test drove the car and the salesperson who allowed it.

After the employee was terminated for his Facebook posts, the NLRB followed up on charges that the posts constituted protected concerted activity. The Administrative Law Judge (ALJ) found that the first post criticizing the hot dogs was protected concerted activity since it expressed concern that his income could be negatively impacted. The ALJ ruled, however, that the second post featuring the wrecked vehicle was not protected since its main purpose was to disparage the company. The employee's termination was ultimately upheld due to the second, unprotected Facebook post. Other companies, though, have recently had to reinstate employees with back pay because their Facebook posts did constitute protected concerted activity.

In looking at the key differences between the two outcomes, employers can gain some insight on Facebook posts which would be upheld by the NLRB.

Potentially Protected Posts:

• Posts in which employees express concern about their working conditions, including pay.
• Posts in which the employee speaks on behalf of more than one person at the company.
• Posts in which fellow employees respond, also voicing concerns.

Potentially Unprotected Posts:

• Posts in which the employee is venting, mocking, or otherwise disparaging the company.
• Posts in which the employee threatens specific harm against coworkers.
• Posts in which an employee discloses confidential company information.
  This, however, can still be a subjective area, and a confidentiality agreement that the court finds to be overly broad may not be upheld.

If facing a social media issue at your company, or to review your social media handbook policy, contact Nextep's HR Department.

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