Tuesday, August 23, 2011

NLRB Social Media Memo Part II - Unprotected Conduct

In Part I, I covered social media acts that the NLRB deemed protected by the NLRA. Now, let’s take a look at some social media acts that are not protected.

The takeaway from Part I was that the social media conduct must: 1. Address working conditions; and 2. Involve other employees. Obviously, one way to define social media activity that is not protected would be to say that it fails to meet one of those criteria. I previously covered three examples of unprotected activity, based on prior NLRB advice.

The latest NLRB memo covers those cases, but also provides some additional examples, including one from Twitter. A reporter’s offensive tweets from a work-affiliated account about his city’s homicides (reportedly including "stay homicidal, Tuscon"), and criticism of a TV station are not protected. And why is that? Well, the tweets don’t address work-related concerns or involve co-workers.

In another case, a dispatcher for a medical transportation and fire protection services employer wrote on her U.S. Senator’s Facebook wall. She complained of low wages and a lack of trucks, and mentioned an incident in which a cardiac arrest response crew didn’t know CPR. It sounds work-related, but wears the concerted activity?

As the memo notes:
[S]he did not discuss her posting with any other employee . . . . There had been no employee meetings or any attempt to initiate group action. She was not trying to take employee complaints to management and admittedly did not expect the Senator to help her situation.
Ergo, not protected activity.

Hopefully these examples, and the previous post about unprotected social media activity have been helpful. In short, offensive posts and personal gripes that don’t seek to address work-related issues aren’t going to garner much NLRA protection.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.