In the middle of the NLRB’s campaign to protect employees from disciplinary action for posting complaints about their employers on social media (see earlier post, NLRB OKs Employee Bad-Mouthing on Social Media), the NLRB has said that not all complaints are protected, even job-related complaints. The NLRB issued three memoranda in July stating that employers did not violate the law by terminating or disciplining employees based on inappropriate Facebook activity.
In the first memorandum, JT’s Porch Saloon & Eatery, Ltd., a Chicago restaurant had a policy that wait staff were not required to share tips with bartenders. A bartender was fired for posting messages on his Facebook page including offensive remarks about customers and complaints about the restaurant’s tipping policy directed to his stepsister. The NLRB said that the restaurant did not violate the law because the conversation did not grow out of complaints between co-workers.
Similarly, the NLRB said that no law was violated in Martin House. A mental health facility fired an employee for having an online conversation on Facebook with friends (not co-workers) that it was “spooky” working at night in a “mental institution” and making comments about the facility’s patients. The employee authored some of the Facebook posts during work time. The NLRB found that the employee’s “Facebook posts did not mention any terms or conditions of employment” and never discussed the posts with co-workers.
In the third memorandum, Wal-Mart, a customer service employee was suspended for posting on Facebook the comment, “Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!” Two coworkers posted comments in response to the post – one stated “hang in there” – and the employee made additional comments that he was “chewed out” for putting merchandise in the wrong place and that he was going to have the Store Manager “kiss my royal white ass.” The NLRB said that the Facebook posts were “an expression of an individual gripe. They contain no language suggesting the Charging Party sought to initiate or induce co-workers to engage in group action; rather they express only his frustration” with a particular manager over a particular situation.
The take-away: an employee’s individual grievances or gripes about work are not protected activity. However, complaints among co-workers about working conditions and an individual complaint to a governmental agency about work conditions, is protected.