Protected Concerted Activity Surrounding Email and Social Media

Protected concerted activity (PCA) is one of the important guiding principles in the National Labor Relations Act (NLRA). It provides employees their rights to engage in union activity and to band together to address work-related issues even if they are not interested in unionizing or aren't currently represented by a union. Any employee action falling under the employee rights protected concerted activity. The NLRA also addresses employer rights and limitations concerning protected concerted activity (PCA). You can't "discharge, discipline, or threaten" an employee, nor can you "coercively question" an employee about a protected concerted activity. That is the basic definition, but unpacking what this means in the workplace continually proves more complex with the availability of social media and email and a pro-union National Labor Relations Board (NLRB) determined to expand what protected concerted activity includes.

Conversations On Any Communication Channel

 The details of the specific employee and employer rights put into action are frequently changed by the NLRB, which interprets the NLRA and issues decisions and guidance on relevant PCA matters. Can an employee post or write whatever he or she wants as long as it concerns wages, benefits, and working conditions? The NLRA says an employee can lose NLRA protection when statements are "egregiously offensive or knowingly and maliciously false, or by publicly disparaging" the employer's products or services without relating the complaint to a labor issue. An activity is concerted when it involves more than one employee and protected when it falls under the auspice of the NLRA.  

The National Labor Relations Board has extended the protected concerted activity protection to conversations on social media and in emails. In 2012, the NLRB reviewed 14 employee charges involving discipline for Facebook postings and 14 employer policies. Another report examined seven employer policies governing the use of social media by employees. The findings were a broad mix of some social media posts found protected; some were unprotected; the union engaged in unlawful coercive conduct by posting videotaped interviews with employees at a nonunion jobsite about their immigration status; some employer policies were too broad, and some discharges were unlawful because they were based on unlawful company policies. 

In 2012, the NLRB began issuing decisions involving social media postings and so began establishing precedent. By 2021-2022, there have been hundreds of NLRB decisions, creating a confusing array of responses that admittedly are not always consistent because the political affiliations of the NLRB often drive an agenda. Thus there has been a lot of back and forth between reversing prior decisions and expanding on current ones. Also creating confusion is the addition of new technologies in digital communication and employee activism that has added social justice principles to discussions on compensation, benefits, and working conditions. 

The NLRB's General Counsel issued a memorandum (GC 21-03) that greatly expanded what is considered a PCA. It said, protected employee advocacy "need not be explicitly connected to workplace concerns and may include employees' political and social justice advocacy when the subject matter has a direct nexus to employees' interests as employees.'" The memorandum adds "political and social justice advocacy" that is based on Section 7 of the NLRA giving employees the right to engage in concerted activities for the purpose of "mutual aid or protection." The current NLRB believes there could be a link between political and social justice activities and workplace issues or the interests of employees. The "interests of employees" clause greatly expands protected concerted activity. 

As an employer, you are faced with constantly adapting your Human Resources and workplace policies and keeping your leaders trained in labor law to avoid charges of unfair labor practices (ULPs). It is a huge challenge that will grow bigger as a pro-union NLRB continues to move forward in its efforts to support unions.    

Identifying Protected Concerted Activity

There has to be a clear understanding of PCA to understand what employees can say and post on social media or write in emails. There are many forms of protected concerted activity. It could be as simple as your employees wearing buttons and pins with a labor union logo (or posting a union logo on social media) or as complex as a work stoppage to get management's attention for an employee issue (or employees calling for a work stoppage through social media). It may be union organizing via social media or email or posts trying to whip up interest in approaching management about work schedules. With access to email and social media accounts like Facebook and Twitter, your employees can easily and publicly address work-related issues and share information about pay, benefits, and working conditions with coworkers. 

It only takes two employees to qualify as a PCA. Protected concerted activity may apply to a single employee only as long as the employee is "acting on the authority of other employees, bringing group complaints to the employer's attention, trying to induce group action, or seeking to prepare for group action." An employee can gripe about a performance review, pay, work schedule, or other personal interests, but it's only protected concerted activity when two or more employees are involved, even if both are not on social media. 

To be protected concerted activity under Section 7 of the NLRA, the employee's conduct must be both "concerted and "for the purpose of mutual aid or protection." It can include: 

(1) statements by lone employees addressing their coworkers to initiate, induce, or prepare for group action;

(2) a lone employee's communications with management to convey a truly group complaint;

(3) statements made to elicit group action from like-minded coworkers for a personally held view about working conditions; and

(4) communications involving "inherently concerted" discussions about vital aspects of workplace life. 

Employees can lose protected concerted activity status by saying or communicating something knowingly false, malicious, or publicly disparaging about their employer. In addition, what you as an employer consider egregiously offensive may not be the same as what the employee considers egregiously offensive. PCA does not include employee complaints, but the employee can say something publicly disparaging as long as the statements are related to a labor issue, and there are two or more employees involved. These rules give employees a lot of leeways to claim protected concerted activity. It is not that difficult for employees to find a way to link a critical comment to a workplace issue.    

Once it was words that were protected, but social media now offers a variety of ways to express an opinion without writing words. They include: 

  • Emojis
  • Memes
  • Emoticons
  • Likes
  • Thumbs down (dislikes)
  • GIFs
social media union organizing

NLRB Advice Based on an Employee Charge

An NLRB Advice memo issued on August 24, 2021, addressed a situation in which a bariatric surgical practice employee was unhappy with management. An employee (charging party) filed a charge with the NLRB, and the NLRB issued an Advice Memo. This case involved the use of a meme, emoticon, and social media posts by coworkers.

Attorneys on JDSUPRA summarized the situation that occurred and the NLRB response. The charging party and other employees had discussed among themselves their issues with management. One of the employees quit. The charging party believed the workload was too heavy and discussed it with the employer. The charging party posted on Facebook that night, and it said, "Just in case someone needed to know," followed by a shrugging emoticon. The post included a meme that said a "bad manager can take a good staff and destroy it, causing the best employees to flee and the remainder to lose all motivation." The charging party ended the post with, "Employees don't leave Companies, they leave Managers."

Many people commented on the post, and at least two of them were coworkers. One coworker posts, "YESS. Freakin YESSSSSS!! [sic].” Another coworker posted an emoticon that was a face with no mouth (think: no employee voice).

The employer's representative saw the post, and a coworker got a text message from that person that said, "someone just sent me a screenshot of your comment you made on [the Charging Party's] Facebook posting about managers. Just a heads up," making the coworkers and charging party worry about their employer's response. The two coworkers deleted their texts.   

The next day, the employer's representative questioned the first coworker about the post, mentioning it was forwarded to others within the organization and asked if the employee was happy. The employer warned the employee to be careful about what was posted online. 

The charging party was told he/she had 11 patient complaints lodged within a month and terminated the employee. The employer didn't produce any documentation of the complaints.

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Expansion of Protected Activity

The NLRB said the Facebook post was protected concerted activity because the post was made to initiate, induce, or prepare for group action over the quality of management and employee attrition. The NLRB used the first coworker's comment and the second coworker's mouthless emoticon to base their opinion. But was the conduct inherently concerted activity? It was determined it was because a desire to induce group action is implied when employees discuss higher wages, work schedules, or job security. In this case, the NLRB said the charging party discussed job security.

As attorneys Barnes & Thornburg explain, The NLRB's Division of Advice took the position that the post was an "inherently concerted activity" even though it did not call for group action or "mutual aid or protection. This is a wide expanse of what protected concerted activity includes. 

There is also the issue of the employer terminating the employee to "chill or curtail potential future Section 7 activity," which is not allowed under the NLRA. The NLRB pointed to the charging party complaining about the workload, the employer representative's threats to the first coworkers about the Facebook posting, and the suspect rationale for terminating the charging party. 

NLRB Advice memos are not binding, but employers should treat them that way. They provide insights into how the NLRB thinks. This Advice Memo expands the scope of protected concerted activity and will be the guide for the NLRB's decision-making.  

As an employer, you have vulnerabilities to PCA under normal circumstances because the National Labor Relations Act protects employees. However, the vulnerability level increased several notches with a change in the federal administration and NLRB membership, both vocally pro-union. Charges of unfair labor practices (ULPs) based on an employer interfering with protected concerted activity are almost certain to be decided in favor of the employees, given the current pro-union NLRB.    

You have an employer's right to protect certain confidential business information, but there are limits. You don't have the right to have a rule that says employees will be subject to disciplinary action if they disclose compensation data, personnel, and salary information. You can't violate NLRA Section 8(a)(1), which makes it a ULP for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." 

Using Email for Union Organizing: Seeing Purple 

We have previously shared the case of Purple Communications, Inc. and Communication Cases Workers of America, AFL-CIO (21-CA-095151). This case, now closed, usually referred to as Purple Communications, involved a CWA Unfair Labor Practice claim the employer's handbook prohibited employees from using the company's email system for "activities on behalf of organization…with no professional or business affiliation with the company," and this violated employee NLRA rights

The NLRB established a new standard for employer rules restricting the use of an email system in this case. In Purple Communications, the decision by the NLRB, affirmed by an Administrative Law Judge, was that the employer violated Section 8(a)(1) by restricting employee use of the company's email system. Employees who already use an employer's email system at work could use that system during non-working time for NLRA Section 7 communications.  

Purple Communication took the case to the U.S. Court of Appeals, which sent it back to the Board for reconsideration in light of the Board's decision in the Caesars Entertainment, dba Rio All-Suites Hotel and Casino case (368 NLRB No. 143). The Caesars Entertainment case overruled the Purple Communications case. It said the employer "does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination." The case that began in 2014 finally ended in 2020. 

Currently, employees don't have a right to use their employer's email system for protected concerted activity as long as they have other ways to communicate. Take note, though, that on August 12, 2021, General Counsel Abruzzo released a memo that identified NLRB priorities, and it included cases involving employer handbook rules, the scope of protected concerted activity, and the definition of mutual aid or protection. Abruzzo has signaled she would like an overruling of Caesars Entertainment and a return to Purple Communications.   

In general, employees can use social media for union organizing as long as they meet the requirements of Section 7 of the NLRA. Employers must walk a treacherous path. They can look at public social media, but looking at a private social media page is more nuanced. The employer can't do anything that creates a chilling effect 

protected concerted activity

Using Slack for Union Organizing 

New digital communication platforms are regularly appearing. As the pandemic progressed, organizations became more reliant on digital communication technologies, especially in companies that have remote employees. Employees use a variety of technologies like chat rooms and Slack channels. In the case of Packingham v. North Carolina, the Supreme court decided that social media websites are physical gathering places.   

Employees are embracing technologies for union organizing in different ways, and tech workers are paving the way by forming communities and unions. Slack is a platform for the workplace that has channels for focused conversations, files, and tools; Slack Connect for team collaboration; messaging, and voice and video calls. Private channels can be set up that are only open to people by invitation by someone already a channel member. 

It is an ideal communication channel for union organizing though that wasn't its intent. Its intent is a workflow management and work communication system. However, a young labor force and tech workers use Slack to organize. Slack is often used in combination with other communication tools. For example, Mapbox employees used a combination of private Slack for private communication, Facebook Groups for crowdsourcing information, and Signal for confidential discussions to organize the Mapbox Workers Union (the union lost the election). 

The Apple story is an example of how the younger tech workers are latching onto digital communication channels. Two Apple repair technicians launched AppleConnect, a Discord server, in 2018 so techs could collaborate. It wasn't a secret and became so popular that other Apple workers wanted to join. By October 2021, 600 employees were using anonymous identities to discuss work issues.   

In August 2021, Apple blocked an employee effort to create a Slack channel to talk about pay equity. The employee relations representative told employees, "Slack channels are provided to conduct Apple business and must advance the work, deliverables, or mission of Apple departments and teams."   

The problem is the decision is inconsistent with other Slack channels the company allows, like one for fun dogs and one for dad jokes. These are obviously non-work activities, so blocking discussions on workplace pay inequities, a protected concerted activity topic, by applying inconsistent social media rules is not going to stand.  

There are two issues here. One is the inconsistent application of the rules concerning employee communication channels. The second is that talking about pay equity is a protected concerted activity. The problem for Apple was that the company had opened up an opportunity for the NLRB to return to Purple Communications should an employee file an Unfair Labor Practice.  

Using Social Media for Union Organizing 

Once again, two or more employees have the right to hold conversations about workplace conditions using various communication channels. They must follow the NLRA requirements about not falsely disparaging the employer or telling lies. In reality, the application of the law depends on NLRB determinations that blow with the political wind and are unpredictable.

Example of Protected Concerted Activities 

An attorney writing for Forbes, Tom Spiggle, demonstrated the issue by pointing out opposing decisions.  

The NLRB found activities like the following to be protected concerted activity.  

  • Employees posting on Facebook about a coworker who was critical of their performance. 
  • An employee likes another employee's Facebook post that complained about an employer's mistake in filling out a tax form incorrectly.
  • An employee insulted his manager and the manager's family on social media before a union election and encouraged other employees to vote yes.  

Not Protected Concerted Activities

The NLRB found activities like the following to not be protected from concerted activities.  

  • Employee's Facebook post made fun of a workplace accident. 
  • An employee complained about bad tips.  
  • Employee complaints about tipping on Facebook were directed toward a relative and not a fellow employee or group of workers. 


Establish a Detailed Social Media Policy

Corporate reputation management is infinitely more difficult with so many communication channels available today. Employees are allowed to post negative comments about their employer as long as the post concerns something that can be linked to the workplace. With the addition of topics like social justice and environmental sustainability, almost anything can be construed as concerning the workplace, employee health, safety, etc.  

Employers are advised to review their employee handbook policies and procedures to make sure they don't restrict employee communications about their workplace on social media in violation of the NLRA and that they communicate the organization's values. Establish a detailed social media policy so that employees aren't confused about what is unacceptable. Before saying anything to an employee who posts something you don't like, first evaluate whether it's protected concerted activity. A labor relations specialist, attorney, or labor relations consultant can assist, saving your company thousands of dollars by avoiding ULPs. There is no doubt that the NLRB will continue to expand what constitutes protected concerted activities as much as possible.

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About the Author Jennifer Orechwa

With over 25 years in the industry, and now as IRI's Director of Business Development, Jennifer has gained a unique perspective on what it takes to build a culture of engagement. By blending a deep understanding of labor and employee relations with powerful digital marketing knowledge, Jennifer has helped thousands of companies achieve behavioral change at a cultural level.

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