Just last month, the National Labor Relations Board (NLRB) found that a supervisor had violated the law by engaging in “unlawful surveillance of an employee’s online union activity, including an investigation of the employee’s Facebook page.” The case, called AdvancePierre Foods, Inc., sends a signal that the NLRB is looking to crack down on employer monitoring of employee social media. Read on:
During the spring of 2015, the United Food and Commercial Workers Union Local 75 began meeting with AdvancedPierre Foods, Inc. (AP) employees about possible unionization of the workforce in AP’s Ohio facility. On June 14, 2018, an employee of AP, Diana Concepcion, apparently gave a radio interview about the pro-union campaign. Hearing about this interview, AP’s employee relations’ manager, Mandy Ramirez, went to the radio station’s website to access the interview. From the radio station’s website, Mandy apparently was able to connect with the employee, Diana’s, personal Facebook account. Mandy began looking around.
In the process of snooping on Diana’s Facebook page, Mandy became suspicious that Diana was going by a different name and had potentially provided false documentation to AP when she began her employment. Mandy relayed this information to management. AP subsequently informed Diana that she needed to provide additional documentation to confirm her identity. When Diana failed to provide the requested documentation within AP’s timeframe, she was suspended without pay.
What was the problem?
The NLRB concluded that regardless of the resulting information obtained about potentially false documentation, Mandy violated the National Labor Relations Act (NLRA) by actively “conducting surveillance” on an employee’s union activity. The reason Mandy had gone to Diana’s Facebook page, the NLRB said, was because Mandy was trying to find more information about Diana’s union activity. The NLRB also found that AP’s demand for Diana’s documentation was in retaliation for Diana’s union activity.
In support of its decision, the NLRB noted that Mandy’s “Facebook surveillance” of Diana was “reasonably likely to interfere” with Diana’s or any other AP employees’ willingness to participate in union activities and expression of support for the union. That violates the law.
What does this decision mean?
It’s important to remember that the NLRA puts pretty strict limits on what employers can do if and/or when employees express interest in forming a union in the workplace. For example, employers cannot threaten employees based on their union activity, interrogate workers about their union activity, make promises to employees to entice them away from joining a union or engage in surveillance (i.e., “Facebook stalking”) on workers’ union activity or sentiments.
While this case of “Facebook spying” gone wrong is still tailored to union activity, employers should really avoid checking on their employees’ social media profiles as a good practice. This case signals the NLRB’s willingness to ding employers for online “snooping” if it is even slightly connected to an employees’ union activity.