Social Media Update - Comments Legally Protected as Concerted Activity

Social Media Update – Comments Legally Protected as Concerted Activity           The U.S. Chamber of Commerce released a survey recently indicating that the National Labor Relations Board has reviewed more than 129 cases involving social media in some way.  As a result of these cases there have been 7 settlements, 2 Board decisions and 10 memoranda issued by the General Counsel.   A significant percentage of these cases involved non-union employers with no union activity.   The most common issue – overbroad employer policies restricting an employee’s use of social media.  NLRB General Counsel in a memorandum dated 5/5/2010 recalled that the Board has held that “an employer’s discipline of an employee based on a website statement relating to terms and conditions of employment is unlawful.”  These communications referred to as “other concerted activity” are protected under Section 7 of the National Labor Relations Act in addition to rights of employees to self-organize, to form, join, or assist labor organizations, and to bargain collectively through representatives of their own choosing.  Concerted activity, to be protected, must be for the purpose of collective bargaining or for “other mutual aid or protection”.  Though not defined by the Act, the NLRB has found concerted activity to include statements made by an employee when acting with the authority of other employees seeking to initiate, induce or prepare for group action or to bring group complaints to the attention of management.  Specific cases have found concerted activity present where employees complained of terms and conditions of employment including: wages, corrective actions, discharges, employer investigations, pay practices and working conditions.  These complaints came in the form of emails, posts and blogs.  Since the application of the Act to social media policies is a major developing area and NLRB decisions are specific to the underlying facts, only time will tell where the line will be drawn between protected activity and mere griping.