On February 1, 2013, the NLRB's General Counsel released an advice memorandum from January 17, 2012, giving further guidance to employers regarding NLRB prosecutorial views about the lawfulness of discipline related to employee posts on social media.

Although more than a year old, the memorandum's release follows three earlier reports on social media released in the past two years. See Legal Updates:

After Phenom Hospitality, LLC, purchased Character's Pub, a restaurant and bar, the new owners:

Employees and former employees of the pub had a private group Facebook page, of which the new co-owners were not members. After the pub's ownership changed, discussions about work on the Facebook page increased. One employee posted several comments, including that:

A current employee responded to the latter comment by posting "the times they are a change'n." A former employee responded that it was "very upsetting." No one posted any comments calling for employees to collectively discuss their concerns with the new owners.

When the employee reported to work several days later, the new owners met her outside the pub to tell her they had seen her comments on the Facebook page, did not appreciate the commentary, and that they should go their separate ways. One of the owners would not permit the employee to enter the pub to say goodbye to her co-workers.

The employee filed an unfair labor practice (ULP) charge challenging her termination. Like all ULP charges involving social media, the case was submitted to the Office of the NLRB's General Counsel for advice. The Division of Advice considered whether the employer violated the NLRA by discharging the employee because of her posted comments.

The NLRB Division of Advice concluded that the employee's Facebook postings were protected concerted activity for mutual aid and protection, and therefore that the employer violated Section 8(a)(1) of the NLRA by terminating her. The Division of Advice first noted that concerted activity is most clearly met when an employee group discussion expressly includes the topic of collective action, but also may be met when the discussion does not include a current plan to act to address the employees' concerns, but is merely group activity. The employee's Facebook postings were protected concerted activity because:

The Division of Advice also noted that the employee's one profane remark on the private Facebook page was not offensive enough to lose protection of the NLRA.

This advice memorandum is not binding precedent from the panel (Board) heading the judicial functions of the NLRB. However, it does provide guidance to employers on when an employee's termination for social media postings may face NLRB scrutiny. Although issued to the applicable NLRB regional office and parties more than a year ago, the memorandum was released by the Division of Advice in the Acting General Counsel's Office following NLRB decisions in late 2012 that expanded what may be considered protected concerted activity and eviscerated requirements that employees seek to initiate or induce or prepare for group action to bring workplace problems to management's attention (see Legal Updates, Spreading Fear about Job Loss to Coworker is Protected Concerted Activity: NLRB and Employees' Facebook Posts about Coworker's Job Performance Criticisms was Protected Concerted Activity: Facebook Firings Unlawful: NLRB).

These 2012 cases may not be valid after the US Court of Appeals for the District of Columbia Circuit's decision in Noel Canning v. NLRB that the NLRB lacked a quorum when it issued those decisions (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt), but it appears that the General Counsel's office is issuing complaints based on a similar very liberal standard for what constitutes protected concerted activity. The advice memorandum directs that an NLRB regional director issue a ULP complaint on what amounts to Facebook group griping without any plan or suggestion that employees collectively raise issues with management. The Divison of Advice likened the group griping here with employees:

The case itself was settled in 2012, so neither the Board nor a federal appellate court have reviewed the General Counsel's analysis. However, the standard of protected concerted activity described in this advice memorandum appears even more lax than what the General Counsel's office previously used in its social media reports (see Legal Updates, NLRB General Counsel Issues Report on Emerging Issues Involving Employee Use of Social Media and NLRB General Counsel Issues Second Report Concerning Restrictions on Employees' Use of Social Media), and employers should be aware that the General Counsel's office has now publicized this standard.