Upset over Employee Facebook Posts? Think before you Fire

 POST by Michael Melder.

The law that protects unions applies to social media postings by nonunionized workforces.  Why?

The National Labor Relations Act (NLRA) protects employees’ rights to participate in concerted activity.  What that means is, employees can get together and talk about how bad their boss is, or how much they make, or how terrible their work environment is, etc.

I’ll call it grousing over job conditions.  We have all done it.  More traditionally, we participated in concerted activity/grousing during lunch, happy hours, or BBQs with coworkers.  However, the internet has changed all of that. Now many employees post up on Facebook or other social media sites the same things we “talked” about over beers and brats.  For some folks, their postings have led to their termination after the boss gets wind of the not so flattering rants.

The National Labor Relations Board (NLRB), the arm of the government that is charged with enforcing the NLRA, has taken issue with employers who fire employees because of social media postings where the employee is discussing the terms and conditions of employment with other employees.

Beginning in 2011, the NLRB’s general counsel began issuing memorandums regarding employee’s use of social media to participate in concerted activity.  Ultimately, it issued three memorandums regarding the topic.  More recently, the NLRB has issued board decisions regarding social media and concerted activity.  As you would expect, the decisions are detailed and fact intensive.  The following link provides some details on the subject: http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media.

Needless to say, the use of social media by employees to participate in concerted activity is still novel, nuanced, and changing.  Therefore, as an employer you should use caution before firing or disciplining an employee over social media postings.  If you are an employee and you have suffered an adverse employment action because of your social media postings, your employer may have violated the National Labor Relations Act.