NLRB vs. Social Media: The Battle Continues

The National Labor Relations Board (NLRB) has announced that, on May 9, it issued a complaint against a non-profit for allegedly terminating five employees for comments they made on Facebook.  This is the latest development in what appears to be the final frontier of social media and employment law.  NLRB white

Seth Borden at Labor Relations Today gives a more detailed account of the facts as alleged by the NLRB but the short version is this:

Employee posts comments on Facebook.  Co-workers respond to the comments with comments about their own job performance staffing issues. Employer fires co-workers for the posts, which the employer contends constituted unlawful harassment.

A hearing is set for June 22, 2011.  This is only the second time that the NLRB has issued a complaint–the first was in the American Medical Response (AMR) case, which was settled before a decision was reached.  That complaint was issued by the NLRB’s Connecticut Regional Office. 

Although a settlement was reached before a complaint was issued, the NLRB’s Manhattan Regional Office announced earlier this month that it intended to file a complaint against Thomson-Reuters for allegedly reprimanding an employee for complaining about the company on Twitter.  However, just last week, the NLRB’s General Counsel’s Division of Advice concluded that the termination of an Arizona newspaper reporter for posting comments critical of his employer on Twitter was lawful

Adding yet another layer to the analysis of union rights and social media, on April 12, the NLRB’s Office of General Counsel announced that social-media disputes must be submitted to the Division of Advice due to the novel issues involved.  Yet, Philip Gordon, of Littler Mendelson, reported that the Director of the Connecticut Regional Office revealed that the Regional Offices, “at the direction of the Board’s Acting General Counsel, are filing complaints to set the stage to reverse the Board’s [] decision in Register Guard.”

On one hand, it seems that the NLRB’s General Counsel is taking a cautious approach to ensure consistency in this new area of the law.  On the other hand, though, it appears that the Regional Directors have been directed to take an aggressive approach to these issues, as certainly seems to be the case in the recent filing by the Manhattan Regional Office.

Stay tuned as the NLRB-vs.-social-media battle continues.

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