From Ancel Glink's sister blog, The Workplace Report: NLRB: Facebook and Surveillance, and Concerted Activities, Oh My!
In a recent decision from the National Labor Relations Board, an administrative law judge addressed whether a laid-off employee’s Facebook photos and comments, which were critical of her employer’s pay and workplace condition policies, could be used in the employer’s decision not to rehire the employee.
Strain, a former sales employee at Natural Life, claimed the company engaged in unlawful surveillance by checking her Facebook page. A company manager (Guggia) had heard that Strain was posting “horrible things” about her on Facebook. Guggia, who was Facebook friends with Strain, looked and saw that Strain had made negative comments about the company and its owner. Guggia specifically recalled Strain commenting that “she had something for their ass.” Strain made other comments in which she claimed that her employer was racist and stealing from her paycheck. Based on those negative Facebook posts, Guggia chose not to rehire Strain, and Strain's complaint went to the NLRB.
The case included a number of claims, including that the company (1) engaged in unlawful surveillance of Strain's Facebook page; (2) unlawfully listened to employee phone calls; and (3) improperly terminated Strain and co-workers for engaging in protected concerted activities.
First, the administrative law judge dismissed Strain’s unlawful surveillance claim, finding that Guggia looked at Strain’s Facebook to determine what Strain was saying about her individually. Guggia’s action was not enough to establish that the company had engaged in surveillance of its employees in an effort to discover their protected concerted activities.
The case also included an allegation that the company unlawfully listened in and recorded phone calls between its employees. In contrast to Strain’s Facebook claim, the administrative law judge found that the company did engage in unlawful surveillance when it snooped through the phone calls since the employees were discussing taking legal action against the company. In his opinion, the administrative judge reminded the company that “[t]filing of an employment—related class or collection action relating to terms and conditions of employment is protected activity.”
Finally, the administrative law judge held that the company had improperly terminated Strain and several of her colleagues because they engaged in protected concerted activities. At a meeting prior to the employees’ discharges, Guggia made several comments about the employees’ conversations in regards to filing a lawsuit and their complaints about the terms and conditions of their employment. The company failed to set forth persuasive, lawful reasons for the terminations. Strain, as well as several other employees, was awarded reinstatement and back pay due to the unlawful terminations.
This decision serves as a good reminder for what constitutes as unlawful surveillance of concerted activities under the National Labor Relations Act. Observing employees engaged in protected conduct in a manner that is “more than ordinary or casual,” can be considered coercive. The decision also provides some further insight regarding the how the NLRB is addressing workplace-related comments published on various social media platforms.
Original Post Authored by Katie O'Grady, Ancel Glink