In this Labor Law Insider podcast episode, Tom Godar is joined by Husch Blackwell attorney Sonni Nolan and firm alum Kat Pearlstone, as they conclude their exploration on protection of employee’s speech under the National Labor Relations Act (NLRA). In episode #10, the first in this series, the Labor Law Insider explored how disrespectful, crude and offensive speech may still be protected as concerted expressions under the NLRA. In this episode the panelists look at the standard for review of potentially protected speech, how threats of violence are treated under section 7 of the NLRA, the tricky world of social media comments that target people or business, and some best practices to eliminate or at least reduce the risk of an unfair labor practice charge.

The good news is the return to the more helpful standard for assessing whether protection should be accorded an expression made by the employee. First, the employee will have to demonstrate that he or she engaged in protected conduct, that the employer knew of such conduct and the employer acted with animus against the protected activity by counseling, discipline or discharge. Upon this proof, the employer would have the burden to respond and offer a legitimate business reason, not based on protected Union activity, for its action. General Motors LLC, 369 N.L.R.B. No. 127, 2020 BL 270474.

One area which can cross the eyes of an employer is related to possible threats of violence, and whether they would be entitled protection under the NLRA. In those cases, the Board may assess whether a provocative statement, is mere hyperbole, or a legitimate threat of violence. Kiewit Power Constructors Co., v. NLRB, 652 F.3d 22 (D.C.Cir. 2011). Employers would be asked to excuse certain threatening words as essentially not credible but are left with the near impossible task of ferreting out real threats from just excited expressions.

Another focus of the discussion is on statements receiving protection made via social media comments. Indeed, as employees work from home at an increasing rate during and following the COVID pandemic, more of these offensive and possibly harassing or threatening comments may come through the internet and social media as opposed to directed activities in the workplace. As a result, employers will have a very difficult job of not only interpreting whether these statements may be protected, but even investigating these comments. For instance, it is not unusual that employees who are identified as making these social medial comments would deny making those statements and merely claim that their account was hacked. This presents a very difficult burden for the employer to prove or disprove that an account was hacked, yet at least some decisions experienced by our Labor Law Insiders suggest that that is precisely the burden the employer would carry. This may be true in the context of a disciplined or fired employee claiming an Unfair Labor Practice, or if actions were challenged, not under the NLRA but, for instance, in the context of an arbitration under a collective bargaining agreement appeals process. Further, other “innocent” employees complaining about comments, may not offer sufficient proof of harassing or threatening conduct if the victim making the complaint has since deleted the text or other comment from his or her social media feed.  

At least one option for the employer is to ignore gross or disrespectful comments on the internet or through social media, with the hope that they will soon fade away, and with the recognition that rising to the bait of such comments with a response may only render greater public dialogue and further exposure of often untrue statements.

As with so many of these issues, the panelists urge hiring and retaining excellent supervisors who are trained not to react, but to act with deliberation upon receiving or reviewing such obnoxious comments. Most employers have crafted policies which prohibit disrespectful speech, but supervisors must be trained in filtering through such policies to understand the implications of protected speech under the NLRA. In those cases, of course, counsel should be consulted for the latest iteration and interpretation of the breath of protected concerted action as interpreted by the NLRB and the Courts.