By Marc R. Jacobs, Esq.
In Design Technology Group LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (4/19/13), the National Labor Relations Board (NLRB) continued its aggressive efforts to regulate the workplace implications of social media in non-union workplaces. In this decision, the NLRB: (a) determined that several employees had engaged in protected concerted activity when they complained about their supervisor on Facebook; (b) rejected the employer’s defense that the employees “schemed to entrap their employer into firing them;” and (c) ruled that the employer violated the National Labor Relations Act (Act) when it fired them in retaliation for the Facebook postings.
The employer sells clothes. There was an ongoing dispute between several employees and the manager about the store closing time because they claimed the store was in an unsafe neighborhood. The employees posted several negative comments on Facebook about the manager’s conduct, including the following positing by one of them: “Tomorrow I’m bringing a California workers rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on in violation. . . .” Another employee showed the posts to the manager and several days later the employees were fired.
The NLRB initially determined that the postings were protected concerted activity under the Act because the complaints related to terms and conditions of employment (hours and safety) and the employees were working together for their “mutual aid and protection.” Next, the NLRB found a causal connection between the postings and the termination. In so ruling, the NRLB rejected the claim that the employer had been entrapped and stated that the employees’ motives were irrelevant in analyzing whether their conduct was protected by the Act.
This case highlights several trends in employment law:
1. Aggrieved workers continue to file claims of retaliation in a variety of forums at an ever increasing pace.
2. The NLRB is a forum available to workers in non-union settings.
3. Employees who engage in conduct together related to wages, benefits, hours and other working conditions are protected by the Act from retaliation, and the NLRB will aggressively pursue claims to protect those individuals.
4. Negative comments by employees on Facebook and other social media sites, which relate to the employees’ workplace, treatment and management, are protected activity and taking action against an employee for those comments can result in an unfair labor practice charge and liability.