NLRB Addresses Whether a Non-Union Employee’s Social Media Post Were Protected

In a recent case, the National Labor Relations Board (“NLRB”) referred a Charge regarding an employee’s social media post to the Division of Advice.  The Division of Advice provides guidance to the NLRB’s Regional Offices regarding difficult and novel issues arising in the processing of unfair labor practice charges and coordinates litigation of injunction proceedings in federal court under the National Labor Relations Act (the “Act”).

Here, the case was submitted to the Division of Advice for help determining whether the Employer (a supermarket), terminated the Employee for engaging in “protected concerted activities” when the Employee directed criticisms at the Employer’s customers on social media regarding their in-store shopping practices during the COVID-19 pandemic.  Protected concerted activities are protected under the Act.  Generally, there is protected concerted activity when two or more employees act together to improve their terms and conditions of employment, although it is possible for conduct to be so egregious that it becomes unprotected.

The Act protects employees from retaliation or discipline following concerted activities – even where there is no union involved.  In other words, if an employee is terminated or disciplined after participating in protected concerted activities, even in a non-unionized environment, the NLRB may determine that the employer’s actions were a violation of the NLRA.

In April 2020 (near the very beginning on the COVID-19 pandemic), the Employee posted the following on their personal Facebook and Instagram accounts:

This is a repost from Trader Joe’s employees because I agree 100. Just because we are open doesn’t mean we are here for you to spend your time BROWSING around. We are designated as an ESSENTIAL SERVICE. We are not here for you because you have nothing else to do. We are not here because you feel like getting out of the house for awhile.  We are in a STATE OF EMERGENCY. This is NOT A VACATION! Every customer who walks in our doors PUTS US AT RISK. We really don’t want to be here, but we realize that we are needed. YOU don’t see how many times a day we wash and sanitize our hands to try to keep ourselves safe. YOU don’t see our upset co-workers in the breakroom struggling to keep their composure. YOU don’t see our spouses who worry about us every minute we are at work and who are our strength when we get home. We have our jobs to do and we realize the IMPORTANCE OF OUR JOB TO YOU. The LEAST you can do is come in with a sense of purpose, get what you need, and get yourselves home.

The post was “liked” by three other employees.

Shortly thereafter, the Employer terminated the Employee stating that the postings violated the Employer’s social media guidelines by not making clear that the Employee was speaking on their own behalf, not the Employer’s, and because the Employee’s actions failed to comply with the Employer’s expectation, set out in its handbook, that employees “treat all customers . . .with Integrity.”

Following its review, the Division of Advice applied the “Jefferson Standard” and ultimately determined that the Employee’s post was not protected under the NLRA.  The Jefferson Standard is used to determine whether an employee’s public comments on the quality of an employer’s products, services, or operations are protected by the NLRA when they are made in furtherance of a union’s position in a labor dispute. “The public comments must (1) indicate that they are being made as part of a labor dispute and (2) not be extremely disloyal, reckless, or maliciously untrue.”  Here, the Division of Advice focused on whether the Employee’s comments were so “disloyal, reckless, or maliciously untrue” that their intent was to disparage the employer’s product or service.

The Division determined that even though the Charging Party did not directly disparage the Employer, its products, or its services, the Employee’s comments were unprotected because insults toward the Employer’s customers—the life blood of a retailer’s business—were considered disloyal. Further, the Employee’s comments did not provide a direct nexus to a labor dispute as required by the Jefferson Standard. As such, the Division recommended that the Employee’s Charge be dismissed.

So, why is this important?  Well, first because in the case above, the Employee was not in a union; the Employer is not a unionized environment.  That means that this sort of Charge could come out of basically any workplace.  Second, it is important to note that part of the reason for the dismissal was the Employer’s claims that the Employee’s actions failed to comply with the Employer’s expectation as set out in its handbook – meaning, if you do not have a handbook, or have not reviewed it lately, it might be a good time to take a look.