Are Employee’s Facebook Posts Protected Activity?

Employers often ask whether they can terminate an employee who posts negative comments about his coworkers or supervisor on his Facebook page. For private-sector employers, this question has gone largely without an answer from the courts.  There are no cases of which I am aware holding that terminations for Facebook are per se unlawful.   One of the most significant risks for “Facebook firings” is the risk of violating the National Labor Relations Act (“NLRA”).  This risk has materialized in a complaint filed by the National Labor Relations Board (“NLRB”). 

The NLRB has filed a complaint against a Connecticut company as a result of its firing of an employee for her Facebook posts.  The complaint alleges the following:

  • As part of a disciplinary action, the employee was asked to prepare an incident report.  The employee requested and was denied representation from her union rep;
  • The employee’s supervisors threatened her with discipline because of her request;
  • The employee posted negative comments about her supervisor on her Facebook page from her home computer;
  • Other employees joined in and engaged in the online disparagement of the supervisor; and
  • The employee was fired three weeks later.

An NLRB investigation concluded that the Facebook postings constituted “protected concerted activity” and that the company’s blogging and Internet posting policy was overly broad.  Specifically, the policy prohibited employees from making disparaging remarks when discussing the employer or supervisors.  The NLRB also takes issue with another policy, which prohibited employees from depicting the company in any way over the Internet without permission. 

The filing of this complaint is an important reminder to employers–whether unionized or not–that a social-media policy is a must while, at the same time, the wrong policy can have equally severe consequences.   Employers should also remember that the filing of a complaint is not the same as an adverse decision.  The matter will be litigated and the Board’s decision is what will matter at the end of the day. 

Until a decision is rendered, though, this story serves as yet another reminder of the immediate and significant impact social media has on the workplace.

See also:

District Attorney’s Sexting Is a Lesson for Employers

Judge Obtains Protective Order Based on a Tweet

Social Media Passwords and Account Content are Discoverable

Take-Aways from the Navy’s Social-Media Handbook

Romano v. Steelcase: Defendant Granted Discovery of Plaintiff’s Facebook Profile

The Need for (Workable) Social-Media Policies

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