An employee posts a Facebook rant about her “worthless” supervisor and the unfair schedule she has to work. Another Tweets about how “cheap” his employer was in serving only hot dogs to customers during a marketing event, and how it is going to affect his sales commissions. The employers clearly have the right to fire these unloyal employees, right? Not so fast.
The National Labor Relations Board (NLRB) is stepping up its efforts to regulate these types of social media firings. Recall that the NLRB’s first such complaint, in November 2010 in Connecticut was based upon an employee’s critical Facebook posts directed at a supervisor. The NLRB deemed the posts to be protected concerted activity within the meaning of Section 7 of the National Labor Relations Act (“Act”), because the conduct involved a discussion among employees about the terms and conditions of their employment.
The NLRB has recently issued additional complaints against employers who fired employees based upon social media posts. For example, on May 20, 2011, the NLRB issued a complaint against a Chicago area BMW dealership, alleging unlawful termination of an employee who posted photos and comments on Facebook that were critical of the dealership. The employee, a car salesman, and coworkers, were unhappy with the quality of food and beverages at a dealership event promoting a new BMW model. Salesmen complained that their sales commissions could suffer as a result. Following the event, the salesman posted photos and commentary on his Facebook page critical that only hot dogs and bottled water were being offered to customers. Other employees had access to the Facebook page.
The following week, the dealership’s management asked the salesman to remove the posts, and he immediately complied. Nevertheless, shortly after a meeting with management, the employee was terminated for his posts. The NLRB’s complaint alleges that the employee’s Facebook posting was protected concerted activity within the meaning of Section 7 of the Act, because it involved a discussion among employees about their terms and conditions of employment, and did not lose protection based on the nature of the comments. The case is set to be heard by an administrative law judge on July 21, 2011.
On May 9, 2011, the NLRB issued a complaint alleging that Hispanics United of Buffalo, a nonprofit entity that provides social services to low-income clients, unlawfully discharged five employees after they posted comments on Facebook critical of working conditions, including work load and staffing issues. The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. Other employees responded by defending their job performance and criticizing working conditions. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee who had originally complained that employees had not done enough to help clients. Like the Chicago complaint, this complaint alleges that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. The complaint will be the subject of a hearing before an administrative law judge on June 22, 2011.
Prior to that, in early April 2011, the NLRB threatened to issue a complaint against news agency Thomson Reuters, claiming that the company’s news division violated a reporter’s right to discuss working conditions when her supervisor reprimanded her for posting a Tweet that said, “One way to make this the best place to work is to deal honestly with Guild members.” The author of the post, the head of the Newspaper Guild at Reuters, sent the Tweet to a company Twitter address after her supervisor had invited employees to send postings about how to make Reuters the best place to work. After advising the company of its intent to issue a complaint, the NLRB urged the company and the Guild to resolve this and other disputes as part of ongoing labor discussions. To date it does not appear that a complaint has actually been issued.
On a more favorable note, the NLRB recently held that a newspaper publisher in Arizona did not violate the Act when it fired a reporter for his inappropriate and offensive postings on a work-related Twitter account. Among other things, the Tweets included the following content, “You stay homicidal, Tucson. See Star Net for the bloody deets.” “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.” “Suggestion for new Tucson-area theme song: Droening [sic] pool’s ‘let the bodies hit the floor’.” “I’d root for daily death if it always happened in close proximity to Gus Balon’s.” An “advice memorandum” was issued upholding the termination. Lee Enters. Inc. d/b/a Arizona Daily Star, NLRB Div. of Advice, No. 28-CA-23267, 4/21/11 [released 5/10/11]. In rejecting the former reporter’s claim that his firing violated the Act as interference with his right to engage in concerted activity for the mutual aid or protection of employees, the NLRB Associate General Counsel said Tweets commenting on local homicides did not involve employment issues and were not protected under the Act.
The NLRB also addressed the fact that the employer had directed the reporter to refrain from any postings critical of the employer, which was likely an overly broad prohibition. The NLRB memorandum said that even if the employer had instituted an overbroad prohibition of online comments about the newspaper, no case had been found in which the NLRB “held discipline pursuant to an unlawful rule to be unlawful where the underlying conduct was itself unrelated to protected, concerted activity.” Thus, the NLRB’s position was that the comments for which the employee was fired were not comments about terms and conditions of employment and therefore not protected; despite the employer’s seemingly improper blanket prohibition of all comments that could be considered critical of the employer.
The NLRB’s continued aggressive stance with respect to social media cases makes it all the more important for employers to review their social media policies and make any necessary revisions to ensure that those policies are not overly broad and that they do not infringe upon employee’s rights under the Act. It is also imperative that employers train management on proper enforcement of such policies.