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Complaining About Manager on Facebook is Protected Activity


By Patrick Ogilvy

The National Labor Relations Board (NLRB) has determined an employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when it terminated three employees for complaining about their manager on Facebook.    

Facebook complaints
A retail clothing company maintained an upscale women’s clothing store in San Francisco.  The store’s manager and several of the salespersons experienced  work-related conflicts due primarily with the salespersons’ disagreement with the manager’s style of running the store and addressing employee concerns.  As such, the salespersons began communicating directly with the store’s owner and human resources manager, complaining the store manager used her position to bully, manipulate and intimidate the salespersons.

The salespersons also took issue with the store’s operating hours, as the store stayed open an hour or two later than other stores in the area.  Having to leave the store at such a later hour, the salespersons often were forced to deal with being harassed both inside and outside of the store by street people during these later hours.  The store manager failed to take action, and while she was out of town, the salespersons contacted the store owner and obtained permission to close the store early due to the safety issues involved with keeping the store open later.  When  the manager learned the salespersons had gone behind her back,  she became upset and convinced the store owner to recant the decision to close the store earlier.

That evening, the salespersons engaged in a “conversation” on Facebook complaining about the stress they endured as a result of the store manager’s conduct and the lack of response from clothing company.  For instance, one salesperson wrote, “The way she treats us in [sic] NOT okay but no one cares because everytime we try to solve conflicts NOTHING GETS DONE!!”  Another salesperson responded, “tomorrow I’m bringing a California Worker’s Rights book to work.  My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation.”  The next day, the second salesperson brought the book about worker’s rights with her to the store and left it in the break room for others to view.

Another salesperson who viewed but did not engage in the Facebook discussion informed the store manager about the comments posted.  Using the salesperson’s Facebook account, the store manager viewed the postings and then sent printings of the comments to the store owner and human resources manager.  Based on these postings, the store owner and human resources manager determined those salespersons involved should be terminated.  Several days later, the store manager terminated those salespersons, who then filed a charge with the NLRB for violation of Section 8(a)(1) of the NLRA.

Protected activity
The retail clothing company claimed the decision to terminate the salespersons was based on two instances of insubordination.  First, the store owner claimed the salespersons falsely stated the store manager agreed with them in regard to closing the store early.  However, the NLRB found the salespersons never made such a representation about the store manager.  Second, the store owner claimed the salespersons had referred to the store manager as a “bitch” in the presence of customers and other employees.  The NLRB rejected this contention, as the only proof was from the store manager, who was not present in the store at the time of the alleged comments.

Instead, the NLRB found undeniable proof the store owner and human resources manager reviewed the printings of the Facebook discussion and immediately decided to terminate the salespersons based on those postings.  The NLRB found these discussions constituted protected concerted activity under the NLRA both indirectly and directly.  From an indirect standpoint, the NLRB determined the Facebook discussion was a continuation of the salespersons’ conversations with the store owner about working late in an unsafe neighborhood, which involved working conditions.  Further, the NLRB found the Facebook discussion was in and of itself protected concerted activity because it involved the conduct of the store manager as it related to the terms and conditions of employment.  This was further supported by the reference to the book on worker’s rights in California.  Accordingly, the NLRB concluded the clothing company violated Section 8(a)(1) of the NLRA when it terminated the salespersons.

Employers must be cautious when considering whether to act on statements between employees complaining about the employer or their jobs, regardless of whether those discussions take place in person or through social media, such as the Facebook discussion in this case.  As the NLRB’s decision indicates, even a relatively minor and casual “gripe session” on Facebook about a difficult supervisor can constitute protected concerted activity which cannot result in an adverse employment action.

Read more here [click on the board decision].

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