How can social media impact the rights of employees under the National Labor Relations Act

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When it comes to working conditions and terms of employment, one of the most powerful tools available to workers is the ability to take collective action against their employers. This can range from an informal meeting at a person’s home to discuss safer working conditions, to the collective bargaining of unionized professional athletes to increase league minimum pay for rookies.

The power of workers acting together cannot be understated. So it’s no wonder that many employers and business owners take steps to restrict this ability.

Vice recently reported one such possible instance involving Amazon allegedly spying on some of its Flex driver workers on social media. There were several reasons for this surveillance, one of them supposedly being to monitor any potential worker strike or protest against Amazon.

Assuming these claims are true, can Amazon legally do this? It depends on several factors. To find the answer, we need to look at the National Labor Relations Act.

What Is the National Labor Relations Act?

The National Labor Relations Act of 1935 (NLRA) protects the right of most private-sector employees to take collective action to improve their employment welfare. In other words, it allows them to unionize and collectively bargain with their employer.

The NLRA does not apply to state, local or government employees. Some of the other types of workers excluded from NLRA protections include:

·      Agricultural laborers

·      Domestic service workers working in a home

·      Managers/supervisors (although there are some exceptions)

·      Independent contractors

The NLRA is a sizeable law, with many provisions. But when it comes to employees taking collective action, there are two notable provisions worth focusing on: Section 7 and Section 8.

Section 7 of the NLRA

The right to collectively bargain, unionize or take any other concerted activity comes from Section 7 of the NLRA. Thanks to Section 7, eligible employees have the right to participate in union activities or “to engage in other concerted activities for the purpose of… mutual aid or protection.”

This portion from Section 7 protects employees’ right to take part in concerted activities, even employees who are not part of a union.

Almost any activity can qualify as a protected concerted activity as long as two or more employees are cooperating to improve their working conditions. This includes having conversations on social media complaining about working conditions. In some situations, a single employee can also have the right to protected concerted activities, but only if the individual employee acts with authority from, or on behalf of, other employees.

Section 8 of the NLRA

Section 8 deals with the enforcement of Section 7. Specifically, Section 8(a)(1) states that an employer shall not, “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7”.

The National Labor Relations Board (NLRB), which enforces the NLRA, has historically interpreted Section 8(a)(1) somewhat broadly to protect the employee’s right to concerted activities as much as possible. For example, it is an unfair (illegal) labor practice for an employer to:

·      Threaten employees because they want to join a union or otherwise support a union.

·      Coercively questioning employees about their union activities or support.

·      Take any adverse employment action against an employee because of their protected concerted or union activities.

·      Promise employees greater employment benefits for not unionizing.

·      Engaging in surveillance of union activities.

·      Give employees the impression they are spying on their union activities.

·      Recording and documenting employees’ union or protected concerted activities.

In determining what constitutes unlawful interference in a protected concerted activity, the NLRB will decide if it has a chilling effect on an employee’s ability to exercise his or her Section 7 rights. It’s this chilling effect that comes into play when analyzing if an employer can spy on its employees who are engaging in protected concerted activities on social media.

Protected Concerted Activities on Social Media

In theory, it’s easy to determine if an employer’s policy or action qualifies as an unfair labor practice under Section 7 or 8. For example, if an employer does something to prevent an eligible worker from participating in a protected concerted activity, then the employer is likely in violation of the NLRA. But in practice, things are not so simple.

First, we need to decide if the worker is protected by the NLRA. Recall that the NLRA does not apply to independent contractors. So the worker must be an employee to have protection for his or her concerted activities.

Second, is a protected concerted activity taking place? For the most part, if the employee is acting solely in his or her individual capacity, they will probably not receive concerted activity protections. But this is a nuanced determination. It’s frequently based on specific facts and the political inclinations of the NLRB, which can shift with each White House administration. For example, in the past, the NLRB has found the following employee actions to be protected concerted activities:

• A group of employees posting comments on Facebook about a coworker who criticized their performance.
• An employee “liking” another employee’s Facebook post that complained about an employer improperly filling out a tax form that resulted in an unexpected tax bill.
• Right before a union election, an employee who felt abused and disrespected by his manager made a Facebook post insulting his manager and encouraging others to vote yes in the upcoming union election. This post attacked not only the manager, but the manager’s mother and family and dropped a few f-bombs along the way.

But the NLRB has also found that the following actions did not constitute protected concerted activities:

• An employee’s Facebook posting making fun of a workplace accident.
• An employee’s off-hand complaint about bad tips made in front of coworkers, even though both the employee and the coworkers all refused to take on a particular job because of the belief that they wouldn’t receive any tips. However, the employee admitted his complaint was not intended to induce collective action.
• An employee’s complaints about tipping made on Facebook that were directed toward a relative and not a fellow employee and were not made on behalf of fellow workers.

Additionally, employee actions that would otherwise be considered a protected concerted activity may lose these protections if they are too extreme. But keep in mind that the NLRB has allowed rude, insulting and profane statements to be protected under the NLRA. Therefore, it’s not always easy to determine what statements the NLRB will consider as going too far.

Third, does the employer’s action have a chilling effect, or otherwise interfere with the employee’s right to take part in a protected concerted activity? If an employer’s actions directly infringe on concerted activities, an employer can be liable for this unfair labor practice.

But the mere perception that an employer’s actions or rules can affect a protected concerted activity might be enough to get an employer in trouble under the NLRA. The trick is in deciding if the perception of the chilling effect is reasonable or not.

For instance, an employer spying on employees can have a chilling effect. But does a boss looking at an employee’s public Facebook group page count as spying? Probably not.

How about the employer looking at a private Facebook page, but almost anyone can get permission to see it? Maybe that spying that has a chilling effect, but we might need more facts to know for sure.

What if an employer hacks into an employee’s personal email account to see what kind of discussions employees are having about a possible strike? That’s clearly illegal, in more ways than one.

In applying these three steps to Amazon’s actions outlined in the Vice article, we immediately realize there are no NLRA protections for the workers. That’s because Flex drivers are independent contractors, not employees. So in this particular instance, Amazon will probably not run afoul of the NLRA for spying on its Flex drivers.

In Summary

The definition of what constitutes a protected concerted activity has generally been held to be very broad. Even indirect interference such as social media spying can be improper, as long as it has a chilling effect on an employee’s protected concerted activities.

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