Protected Concerted Activity Surrounding Email and Social Media

Protected concerted activity (PCA) is one of the important principles in the National Labor Relations Act (NLRA). It provides employee rights to engage in union activity and for employees to band together to address work-related issues even if they are not interested in unionizing. That is the basic definition, but the details of the specific rights are frequently changed by the National Labor Relations Board (NLRB), which can interpret the NLRA and issue decisions and guidances on relevant PCA matters.  

The NLRB must adapt its decisions and guidances as the workplace and work environment change. For example, digital communication and the impact of calls for social justice have deep impacts on what is considered protected concerted activity. As an employer, you are faced with constantly adapting your workplace policies and keeping your leaders trained in labor law to stay union-free. It is a huge challenge that will grow bigger as a pro-union NLRB moves forward in its efforts to support unions.   

Identifying Protected Concerted Activity

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 as complex as a work stoppage to get management's attention for an employee issue. Following are some more examples incorporating the new work structures and online communication channels. 

  • Using Facebook or other social media to address work-related issues and share information about benefits, pay, and working conditions with coworkers 
  • Refusing to work because workplace conditions seem unsafe 
  • Circulating a petition asking for something like a cost-of-living increase or better hours 
  • With their permission, a single employee represents a group of employees to complain to the employer.  
  • Employees joining together to talk directly to the employer or a government agency like the National Labor Relations Board (NLRB) about a workplace problem. 
  • Employees talk in the break room or parking lot about problems in the workplace. 

Protected Concerted Activity (PCA) is not always obvious. For example, per the National Labor Relations Board (NLRB), a single employee may be engaging in protected concerted activity. The NLRB says, "A single employee may also engage in protected concerted activity if he or she 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." PCA is very obvious when employees chat online or approach an employer. Still, it may not be so obvious when a single employee meets one-on-one with a manager or supervisor. 

Employees can lose protected concerted activity status by saying or communicating, through other communication channels, something knowingly false, malicious, or publicly disparaging about their employer. Ironically, an employee can say something publicly disparaging as long as the statements are related to a labor issue. These rules give employees a lot of leeway 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.  

Protected concerted activity only needs two employees to qualify as PCA. Union and non-union employees have protected concerted activity rights. The one thing PCA is not is an employee's complaint.  

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 political 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.   

protected concerted activity social media

Responding to Protected Concerted Activities 

How do you respond to protected concerted activities? The first rule of thumb is only addressing an individual's concerns, even if a group of employees approaches management. Talk to each employee and not the group. If you treat the complaints or the single employee as engaging in PCA, you're validating the PCA. Managers or Human Resources professionals can meet with employees individually to hear their concerns, investigate the concerns, determine a fair resolution, and share the resolution with the employees.  

The employer's response to possible or actual PCA is critical. A wrong response in words, organizational materials, or employee training can easily lead to legal woes. The wrong response can also harm the employer's reputation.  

A major change that has impacted protected concerted activities in the past two years is a focus on social justice. 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" based on Section 7 of the NLRA gives 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. The examples the General Counsel provide include the following as examples of PCA under the new interpretations of the intent of the NLRA. 

  • A hotel employee has an interview with a journalist to discuss how earning a minimum wage affects her and other employees and how legislation to increase the minimum wage would benefit them. 
  • A single pizza-shop employee attends a demonstration to advocate for a $15 minimum wage. 
  • Protests in response to a crackdown on undocumented immigrants 

The NLRB says, "Going forward, employee activity regarding a variety of societal issues will be reviewed to determine if those actions constitute mutual aid or protection under Section 7 of the Act." The General Counsel referenced two cases it believes had past NRLB decisions that were too narrow and favored employers and made it clear the current Board will view PCA much more leniently when it comes to employees demonstrating mutual aid or protection.  

You have an employer 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." 


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Technologies are Game Changers 

Virtual union organizing is common now, and employees have many communication channels available today, both internally in the workplace and externally on private channels. As technology becomes deeply embedded in union organizing efforts, it is also supporting the formation of alt-labor that are not formal labor unions but operate like one. The Alphabet Workers Union is a good example, and it includes all types of workers – full-time and part-time employees, vendors, and contractors (gig workers). The new virtual organizing model is not only here to stay. It is expanding with the addition of communication options like the Clubhouse app, which enables only private conversations. The virtual communication environment and remote workforce have created fertile ground for online protected concerted activity and union organizing.  

Following are three major areas of concern for employers. 

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 the 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 and 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 ways to communicate. Now there is a new Democratic-controlled NLRB. It could set new precedents in the future that open email once again to union organizing. In fact, 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 mutual aid or protection. Abruzzo has signaled she would like an overruling of Caesars Entertainment and a return to Purple Communications.  

social media union organizing

Using Slack for Union Organizing 

As the pandemic progressed, organizations became more reliant on 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 based on the understanding 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 was not its intent. Its intent is a workflow management and work communication system. However, a young labor force and tech workers are using 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 (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 the middle of 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 rules is probably not going to stand.  

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

Here is something you should be aware of as an employer. Slack was meant to be enterprise software that companies could manage, including employers being able to access private messages and channels. Upon realizing they couldn't discuss issues without their managers knowing, some employees moved to Slack's free version, where they could talk without monitoring. Slack is not hierarchal, and chatters feel empowered because everyone is equal. It is easy to reach a consensus on a variety of issues. It also has a major downside. An early investor in Slack, Andrew Braccia, said it well, "You can get like-minded people that want to be destructive. You can get people driving discussions in negative directions. So I think it can take a lot of work at the company level to control these things. It's an important evolution and maturation cycle that companies are going to need to go through."  

Slack is the ideal union organizing digital communication channel, and not just to initiate organizing. Huffington Post workers were negotiating a new union contract and used a private union Slack channel to solicit feedback.  

But here is an interesting take on the use of Slack. Activision Blizzard is trying to stay union-free after one of its subsidiaries, Raven Software, voted to unionize in January 2022. The VP of Quality Assurance at Activision Blizzard, Chris Arends, used an internal, locked Slack Channel to ask six questions about potential unionization and then answered the questions. Employees couldn't respond to the message.  

The NLRB will soon have something further to say about the use of digital communications by employees and employers. 

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 which blow with the political wind and are unpredictable many times. 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 before a union election and encouraged other employees to vote yes. 

Not Protected from 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. 

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 even environmental sustainability, almost anything can be construed as concerning the workplace, employee health, safety, etc.  

Many issues arise concerning social media. 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

Unions are using social media to organize regularly. Social media gives union organizers a simpler way to recruit and communicate with employees.  

Be Prepared for Expanded Protected Concerted Activity 

Consultant Tom Porter with IRI Consultants says, "Protected concerted activity is a right of an employee incorporated into the National Labor Relations Act. The National Labor Relations Board zealously guards protected concerted activities. Clients should be reassessing their rules and policies with their labor counsel regularly, especially after a change in political administration. The client's front line leaders need proper readiness training to avoid inadvertently creating new rules which may be overbroad and interfere with employee rights."

Training your leaders on the NLRA and keeping them informed of NLRB decisions are two essential strategies for staying union-free. Develop positive employee relations. Utilize your digital communications – social media, apps, employee websites, texts, videos – as tools for employee engagement and not just tools for assigning or directing work. Ensure your leaders are skilled in employee communications, regularly communicate with employees, and understand how to apply transparency in decision-making and policy development. Also, make sure you proactively address diversity, equity, inclusion, and other issues of importance to your workforce. This is how you stay union-free.

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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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