FACEBOOK POSTINGS AND OTHER SOCIAL MEDIA MAY BE PROTECTED ACTIVITY, ACCORDING TO THE NATIONAL LABOR RELATIONS BOARD

In a series of recent rulings and advisories, labor regulators have declared some terminations relating to social media communications, as well as certain social media policy restrictions, to be unlawful.

In a decision with potential major repercussions, the National Labor Relations Board  (NLRB) recently considered an employer’s termination of five employees who posted comments on Facebook about a co-worker, as well as the company, and ruled that the terminations were in violation of the National Labor Relations Act (NLRA).

The decision, issued on December 14, 2012, involved an employee who posted critical comments about a co-worker’s job performance on Facebook from her home computer.  The employee also invited her fellow coworkers to post their views as well.  Four co-workers responded from their personal computers, defending their job performance and commenting on their working conditions.  Later, when an employee complained about these posts the company terminated the five employees because their conduct violated the company’s zero tolerance policy against “bullying and harassment”.

The general counsel of the NLRB challenged the employees’ firings as unlawful, and the Board agreed.  In doing so, the Board determined that the Facebook posts and comments were “concerted activity for the purpose of mutual aid and protection”, and thus were protected under Section 7 of the National Labor Relations Act.  In reaching its conclusion, the Board reasoned that the terminated employees were working together toward a common goal, and that, in terminating the employees, the company had violated the NLRA.  As a result, the Board ordered that the five employees be reinstated.

Not every Facebook posting or “Tweet” on Twitter is so protected, however.  For example, the NLRB had far less sympathy for a police reporter at the Arizona Daily Star who, frustrated by a lack of news, posted several Twitter comments which were inappropriate.  The newspaper fired the reporter, and the NLRB concluded that the dismissal was lawful, holding that the posts were offensive, not considered “concerted activity”, and not about working conditions.

In another ruling, the agency affirmed the firing of a bartender in Illinois.  Unhappy about not receiving a raise for five years, the bartender posted on Facebook, calling his customers “rednecks” and writing that he hoped they choked on glass as they drove home drunk.  The NLRB found that his comments were simply personal venting and not a “concerted activity” aimed at improving wages and working conditions and which is protected by federal law.

In addition to finding that certain postings on social media are protected activity, no matter how critical of the poster’s employer, the NLRB has pushed companies nationwide, including Fortune 100 companies, to rewrite their social media policies, in order to allow such postings.

In addition, the NLRB is not the only governmental agency setting new rules about corporations and social media.  On January 1, 2013, California and Illinois became the fifth and sixth states to bar companies from asking employees or job applicants for their social network passwords.

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