By ANDREW S. FELTS

In a May 2013 advice memorandum, the National Labor Relations Board ruled that Skinsmart Dermatology did not run afoul of the National Labor Relations Act when it fired an employee for making derogatory remarks about the company on Facebook. The NLRB held that the employee’s comments were merely personal “boasting and griping” and did not constitute protected, concerted activity.

However, the result reached in Skinsmart does not automatically insulate all employers for relying on the social media commentary of their employees as the basis of disciplinary action. Skinsmart presents a specific factual scenario in which an employee made personal complaints that had no real effect on other employees — it “did not involve shared employee concerns over terms and conditions of employment.”

The employee’s Facebook posts included such remarks as “back the *** off” and “FIRE ME.” Ultimately, the NLRB decided the social media communication could not reasonably be construed as protected, concerted activity.

Although the Skinsmart decision is seemingly pro-employer, employers still must be cautious in the context of social media commentary by employees. Other recent cases highlight the thin line the NLRB walks when deciding these constantly evolving cases.

The key issue in these determinations is whether the employee is engaged in concerted activity, which is protected under federal law. Thus, the Board (and courts) will analyze whether the employee is acting to improve working conditions.

For example, in Design Technology Group dba Bettie Page Clothing, the NLRB required the employer to reinstate three employees who had been fired for social media discussion regarding bringing an employees’ rights handbook to work. In that case, the court focused on testimony of the workers, which revealed their discussions dealt with working conditions.

In another case, Hispanics United of Buffalo, Inc., the NLRB held that the employer’s discharge of five employees for “bullying and harassing” a co-worker on Facebook was unlawful. The NLRB decided the discharged workers were conducting concerted activity by way of their Facebook discussions regarding an underperforming co-worker.

So, what does this mean for employers?

•Use caution when dealing with social media as this area of employee policy continues to develop.

•Without doubt, the NLRB will scrutinize social media related cases and employers’ social media policies more closely.

•Employers must analyze the possibility that an employee’s comments on a social media outlet relate in some way to protected concerted activity (e.g., pay, hours, safety, workload, job security, etc.).

•Unless the employee’s social media commentary is exclusively geared toward personal issues or gripes, employers must take abundant care when addressing the employee in order to avoid NLRA violations.

•Ensure that employers’ social media policies cannot be construed as overly broad so as to discourage concerted activity.

Andrew S. Felts is an attorney in the Charleston office of Jackson Kelly. This editorial appeared on the firm's chemical industry blog.




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