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NLRB’s Division of Advice–Employee’s can’t hide behind Facebook, LinkedIn posts

November 16th, 2011  |  Sheryl Allenson

Who’s watching? This is a question constantly at issue in the social media milieu. Recently the NLRB’s Division of Advice has issued memorandum concluding that, while the employer terminated an individual arising from social media posts, there was no issue of unlawful employer surveillance of protected activity (Public Service Credit Union, Nov. 1, 2011). In another recent case, the Division found that a LinkedIn post was a sufficient cause for termination, despite an employee’s recent unrelated protected concerted activity.

In the first case, a bank employee was reprimanded after a customer called to complain that he had been sent to a branch a long distance away to change a debit card PIN number. In response to his reprimand, during his lunch break the employee accessed his Facebook page from his cell phone and the following comment.  “Some clown comes in today and asks if he can change his debit card PIN at the ATM. I tell him ours can’t, but the closest one that can is about 10 minutes away. He mentions the city of Ft. Collins. I tell him their machines can change the number. He calls an hour later and bitches about me saying I sent him to Ft. Collins and he is going to close his account.” In so doing, the employee said he was “venting” his frustration at the customer and at the way his supervisor handled the situation, while disclaiming any intent to induce other employees (some of whom were his Facebook “friends”) to act.  The employee maintained privacy settings on his Facebook, such that only friends could see his posts. Thereafter, some coworkers commented on the post.

Two days later, the employee posted another comment on Facebook during his lunch break. That comment, which elicited responses from coworkers, read: “Today is Friday. Fridays are supposed to be good days. So then why am I irritated and bitchy? Oh, right. The person here jumping down my throat for really petty small crap. Let me see. I am doing my job, getting acclimated with our loan/new accounts system and doing part of your job too. Remember how shitty things were the four days I was in the hospital? You really don’t need me getting more pissed off.”  Noting that he was referring to his supervisor, the employee indicated the purpose of his post was to vent his frustrations.

Thereafter, the employee initiated a meeting with the bank’s branch manager, to seek constructive coaching. Although the branch manager indicated that he would consult his supervisor, several days later, the employee was called into a meeting with the bank manager, and several executives. During that meeting, a vice president first pulled out the second Facebook post, and asked whether it referred to a particular officer, which the employee denied. Then he retrieved the post about the customer, chastised the employee for posting that material, indicated that derogatory comments about customers were unacceptable, and thereafter, terminated the employee. Initially, a bank employee who was the employee’s Facebook friend had informed the branch manager about the posts, but there was a dispute as to whether copies of the posts were supplied by coworkers at the request of the employer, or on their own volition.   In reviewing the charge, the NLRB’s Department of Advice concluded that the employee was not discharged for protected concerted activity, nor did the employee engage in unlawful surveillance of protected activity or create the impression of surveillance.

Noting that the employee’s conceded purpose in posting both comments was to vent his frustrations, the Division of Advice concluded those comments did not constitute protected concerted activity.

“Employer surveillance or creation of the impression of surveillance constitutes unlawful interference with Section 7 rights because employees should feel free to participate in protected activity ‘without the feat that members of management are peering over their shoulders[.] ‘An employer creates an impression of surveillance when ‘the employee would reasonably assume from the [employer’s statement that their [sic] union activities had been placed under surveillance,’”wrote the NLRB

First, there was not protected concerted activity to servile, the NLRB noted. However, if there had been, the employer did not engage in any unlawful surveillance, because it received the Facebook posts from the employee’s Facebook friends. Nor did the employer engage in the impression of surveillance because it would not disclose which coworker had turned over the posts.  Noting that the employee had restricted his Facebook page to his “Friends,” he could not reasonably have concluded that his employer was directly monitoring his Facebook page, the NLRB concluded.

In a second case, a post on LinkedIn led to an employee’s discharge nearly a year later (Schulte, Roth & Zabel, Oct. 13, 2011). In this case, the Division of Advice ruled that the charge should be dismissed because the employee’s conduct did not constitute protected activity, contrary to his assertion that his LinkedIn posting was protected concerted activity.

In early 2010, an IT supervisor in the employees’ department sent the employee an invitation to join his LinkedIn professional network. The invitation, which identified the employer’s name, asked for a job title. In response, the employee, who thought only his supervisor would be privy to the response, wrote “f**tard.”

In February 2011, the employee was discussing a successful wage overtime suit with coworkers, which they analogized to their employer’s own overtime policy. However, none of the employee’s wanted to bring the possible conflict to management.  Notwithstanding, the policy was rectified thereafter.

Several months later, while the employer was investigating setting up its own LinkedIn page, the employee’s post was discovered. After deciding that the post was a violation of the company’s electronic communication policy, the employer terminated the individual.   In arguing that he was discharged for engaging in protected concerted activity of discussing overtime, the employee contended that the timing of the discharge was suspicious, because his post had been on LinkedIn  for about a year, but his discharge occurred just two months after his protected activity. The Division of Advice rejected this position; however, noting that timing alone was insufficient to establish a prima facie case. While the General Counsel had the burden of proof of demonstrating knowledge and animus toward the protected activity, in this instance, there was no evidence that the employer was even aware that the activity took place, much less that any animus existed. Moreover, no one contended that the posting itself was a protected by Section 7, and therefore, the employer did not violate Section 8(a)(1) by dismissing the employee, the Division of Advice concluded.

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