Private Colleges and Universities Should, in the Age of Social Media, Devote Increasing Attention to the “Labor” Portion of Labor and Employment Law

By:  Betty S. W. Graumlich & Pakapon Phinyowattanchip
Reed Smith LLP
Richmond, Virginia

Can private colleges and universities discipline employees for social media posts that violate the institution’s policies?  The answer may surprise you.  While public colleges and universities are not subject to the National Labor Relations Act (the “Act”) or the jurisdiction of the National Labor Relations Board (the “NLRB”), private colleges and universities with “gross annual revenue from all sources … of not less than $1 million” are.  29 C.F.R. § 103.1.  Given the Board’s recent expansion of the definition of “concerted activity” to include many activities not previously thought to be subject to the NLRB’s jurisdiction—like an employee’s comments on Facebook—private colleges and universities need to understand how labor law may apply to them.

It is an unfair labor practice for any covered employer—whether unionized or not—to “interfere with, restrain, or coerce employees in the exercise of their right … to engage in concerted activities for the purpose of … mutual aid or protection.”  See 29 U.S.C. §§ 158(a)(1) and 157 (emphasis added).  That means an employer may not lawfully discipline or discharge an employee when: (1) the employee engaged in concerted activity; (2) the employer knew of the concerted nature of the activity; (3) the concerted activity was protected by the Act; and (4) the discipline or discharge was motivated by the employee’s protected, concerted activity.  Meyers Indus., Inc., 268 N.L.R.B. 493 (1983) (“Meyers I”).  “Concerted activity” includes actions by individuals attempting to initiate or plan for group action, and actions by “individuals bringing truly group complaints to the attention of management.”  Meyers Indus., Inc., 281 N.L.R.B. 882 (1986) (“Meyers II”).

The NLRB’s recent rulings in the area of social media highlight the danger for private colleges and universities when they do not consider the potential reach of the Act.  For example, in Hispanics United of Buffalo, Inc., Case 03-CA-027872, 2012 WL 6800769 (N.L.R.B. Dec. 14, 2012), the NRLB ruled that posting Facebook comments about a coworker was a “concerted activity” on those facts.  In that case, a caseworker for a nonprofit social services provider threatened to complain to her boss that other employees were not performing their duties.  In response, Cole-Rivera, another caseworker, posted the following Facebook message from her home computer:   “[A] coworker feels that we don’t help our clients enough at [Hispanics United]. …  My fellow coworkers how do u feel?”  Several of her colleagues posted expletive-laden responses, objecting to the assertion that their work performance was substandard.  After determining that their Facebook comments constituted “bullying and harassment” under the company’s “zero tolerance” policy, the employer fired Cole-Rivera and several of her colleagues that responded to her Facebook post.

The NLRB concluded that Cole-Rivera and the other employees engaged in concerted activity when they posted Facebook comments concerning another employee’s remark about their job performance.  Accordingly, the NLRB held that it was unlawful for the employer to terminate those employees, even though the comments violated the company’s policy on bullying and harassment.  Id. at *4.

Hispanics United teaches that private institutions must consider the labor law implications when making disciplinary decisions.  In the social media context, some factors to consider in determining whether an employee’s conduct constitutes “concerted activity” include (1) the intent of the employee who posted the comment; and (2) whether the posting invites and receives group responses about the terms and conditions of employment.  As Hispanics United establishes, offensive comments on Facebook about employment matters that violate an employer’s policies may nevertheless be subject to the protection of the Act.  In today’s environment, social media is the new “water cooler” where employees gather to discuss terms and conditions of their employment.

For discussions and copies of previous NLRB General Counsel’s reports on social media cases, please visit these sites:

http://www.employmentlawwatch.com/2012/02/articles/employment-us/social-media/nlrb-general-counsel-issues-second-report-on-social-media-cases

and

http://www.employmentlawwatch.com/2012/05/articles/employment-us/nlrb-general-counsel-issues-third-report-on-social-media-cases/

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