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April 26, 2018

Employers Must Carefully Consider Responses to Employees' Electronic Communications

Over the past several years, the National Labor Relations Board (NLRB) has consistently held that employees' social media posts, even if critical of the employer or containing profanity, will be protected under the National Labor Relations Act (NLRA) so long as the posts relate, in some manner, to the terms and conditions of the employee's employment. In this regard, the NLRA protects an employee from being discharged for engaging in concerted activities. Specifically, § 7 of the NLRA guarantees employees the right to engage in concerted activities "for the purpose of collective bargaining or other mutual aid and protection" and §§ 8A1 and 8A3 prohibit an employer from discharging employees for engaging in such activities. Ultimately, the NLRA—and federal courts considering these types of cases—have very broadly defined the sort of content, including social media posts, that fall within the protections of these provisions.

On April 20, 2018, a three-member panel of the NLRB again found that employees' electronic communications were entitled to protection under the NLRA, but in this case, the communications were part of a group email chain and not a social media post. Although not directly in the same realm as the social media cases, this decision again affirms that employers must tread carefully when responding to any sort of electronic communications from their employees.

In Mexican Radio Corp., the employer, a company that operates three restaurants at locations throughout New York State, terminated four employees who responded to an email that was critical of the employer and management personnel. The initial email was written by an employee who resigned due to allegedly detrimental work conditions and treatment by management. That email was written to various management personnel and copied several co-workers, including the four employees who were ultimately terminated. The initial email contained personal attacks on various management personnel and raised issues concerning employee scheduling, wages, and treatment. Each of the four terminated employees responded to the initial email with brief emails indicating their support for the former employee or the issues raised by the former employee in the email. The four responses were: 

  • "Thank you for standing up for us. We will miss you."
  • "Just finish reading and I agree. Sad that things have to be this way."
  • "I'm glad you said what you felt was right. I understand your point of view 100%. Thanks you for being voice for us all."
  • "I agree a 100% as well."

The day after the emails were exchanged, management for the employer sought to address the matters raised in the email by conducting interviews with the four employees who responded to the email. There are some factual discrepancies about what actually occurred, but, in a nutshell, the employees alleged they were asked if they still agreed with and supported the statements contained in the initial email, and when they responded affirmatively, they were terminated.

In response to the claims brought against the employer alleging NLRA violations, the employer asserted it did not terminate the employees for simply responding to the email but for their insubordination. The employer argued further that the email was not protected or concerted activity, but rather was the "expression of a personal gripe" by the resigning employee.

The matter was initially heard by an administrative law judge who ultimately decided the terminations violated the NLRA. The judge noted the NLRB has a broad definition of concerted activity, stating that, "The board has long described concerted activity in terms of interaction among employees "¦ the board [has] held that 'concerted activities' protected by § 7 are those engaged in with or on the authority of other employees and not solely by and on behalf of the employee himself "¦ the board [has] held that an employee's statements at a safety meeting indicating concern with matter which affected not only himself but other employees constituted protected concerted activity. The act also protects concerted activities for mutual aid or protection regardless of whether a union is involved." He further noted, "The board has found concerted activity when employees discuss matters of common concerns, such as wages, sharing tips, working conditions, or work schedules, even when no specific group action was discussed because it is obvious that discussions of this kind usually precede group action."

The judge went on to comment, "Here, the email is a concerted activity. Concerted activity includes not only activity that is engaged in with or on the authority of other employees, but also activity where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management "¦ If the employee or employees who are acting in concert are seeking to improve terms and conditions of employment, their actions are for mutual aid and protection of all employees within the meaning of § 7. Actions taken by the servers were for mutual aid or protection and include activity to 'improve terms and conditions of employment or to otherwise to improve their lot as employees.'"

In rejecting the employer's appeal and upholding the judge's decision, the NLRB panel held that by responding to the email, the four terminated employees were engaged in protected, concerted activity. The board stated that "the email was part of an ongoing dialogue between the workers and the [employer] and was a reaction to the [employer's] failure to correct the problems perceived by the employees; the [initial] email contained little profanity and was merely a critique of the [employer's] management style; the [terminated] employees did not add to the email with any negative comments of their own; the email was nonpublic and did not cause a loss of reputation or business for the [employer]; and there was no disruption of business."

The panel also held the employer's claim that the employees were terminated for being insubordinate was not credible and was a pretext for terminating the employees for their participation in the email exchange. Among other things, the employer was ordered to offer reinstatement to the terminated employees to their positions or equivalent positions without loss of seniority or other benefits, pay lump sum back payment for missed time (a period of approximately two years) and any other losses/expenses related to the improper termination, compensate the employees for any adverse tax consequences arising from the award of the lump sum back payment, and notify all employees (including former employees going back to the date of violation) that the employer engaged in conduct that violated the NLRA.

Although this case raises issues somewhat distinct from social media cases, it serves as another reminder for employers that the protections afforded to employees by the NLRA for concerted activity are broad and readily extend into contexts that do not contain the traditional markings of "union-related" activities, including social media communication and email exchanges. Accordingly, whenever an employer is considering taking action against an employee for any sort of electronic communication, the employer should be wary in considering whether the communication could be read in any manner as raising concerted activity.

If you have any questions about this alert or our Cybersecurity service offerings, please feel free to call or e-mail Nicholas J. DiCesare at (716) 566-1524 or or any of the Barclay Damon attorneys with whom you normally work.


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