The Division of Advice issued three memoranda involving the termination of employees which some commentators and attorneys are heralding as a reversal of the NLRB's aggressive prosecution of discipline and discharge for employee use of social media such as Facebook and of the expansion of the definition of protected, concerted activity. Do these memoranda signify a change or are they just the application by the Division of Advice to the law as it now stands?
In each of the three cases, there was no concerted protected activity to trigger the Act's protection. In JT's Porch Saloon & Eatery (7/7/11), the employee responded to a question from his step sister about his evening. In his post, he complained about the lack of tips and referred to the customers as "rednecks." He did not discuss his Facebook posting with any employees nor any employee respond to his posting.
In Wal-Mart (7/19/11), the employee posted that unless the tyranny in the stored ended, a lot of employees will quit and "Wuck Falmart!" The post was viewed by fellow employees and at least two commented on the post. The Division of Advice stated in the memo that the comments were an expression of an individual gripe, and none of the employee postings indicated that they were viewed as anything else. Mere griping is not protected because it does look toward group action.
In Martin House (7/19/11), the employee made comments about how "spooky" it was to be in a mental hospital and that one of her clients is cracking up at her posts but it may because she is hearing voices. The employer is a non profit homeless shelter for persons with mental health issues. A former client who was a "friend" complained to the employer. The employee did not discuss her post with any employee and no co worker responded to the post. The comments did not deal with terms and conditions of employment and thus were not protected, concerted activity.
The three Advice memoranda are not a sign of a reversal in Board policy. The memoranda reflect the examination of rather typical posts and are marked by the absence of other employee comments agreeing with or expanding upon a matter of mutual concern. The recommendation of dismissal of the charges is consistent with existing Board law.
Until the Board itself issues a decision addressing protected, concerted activity in the context of employee use of social media, employers must still carefully examine employee conduct in terms of the subject of any social media post as it pertains to terms and conditions of employment and in terms of protected concerted activity because of employee response to the post or the post's relation to discussions in the workplace. A belief of a NLRB policy change is, at best, premature.