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Facebook Has Changed the Game

Facebook Has Changed the Game

SML Perspectives
(April 2, 2012)

The National Labor Relations Act and Your Social Media Policy

For most employees, acceptable workplace speech is inherently understood: workers know what they should and should not say when they are on the job, and repercussions for violations are expected. It’s also generally accepted that after work, talking about the difficulties of the day with coworkers, friends, and family is routine, and these private discussions are not expected to have repercussions.

But what happens when an employee vents about their employer on Facebook for others (including coworkers or employers) to see? Posting every micro-thought on Facebook is now so commonplace that it’s easy to forget that it’s largely uncharted territory from an employment law perspective. Should repercussions from talking about your employer on Facebook be expected?

Three Advice Memoranda written by the National Labor Relations Board (NLRB) last year indicate the answer is yes—under certain circumstances. While the NLRB has been traditionally associated with union worker issues, non-union workers have rights under the National Labor Relations Act.

According to the NLRB, employers need to make employees aware of their right to engage in concerted activity, which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.

Last year, there were several incidences of employees being terminated for comments they made on Facebook, and in each case, they attempted to claim that their rights under Section 8(a)(1) of the NLRA had been violated.

In the first example, a step-sister asked her step-brother, a bartender, about his night at work. He replied that his employer’s customers were "rednecks" and that he "hoped they choked on glass as they drove home drunk." None of his co-workers who were Facebook friends participated in the conversation. He was subsequently fired by his employer (on Facebook, ironically). The NLRB did not find that the employer had violated the employee’s rights.

In the second example , a worker at Frito-Lay commented about his treatment by a female supervisor before threatening her, using rather profane language. Although six of his co-workers were his Facebook friends, none commented on their perception of his treatment by the supervisor. The NLRB Advice Memo stated: "The Employer contends that the charge should be dismissed because the Facebook postings were not concerted activity for mutual aid or protection and, even assuming otherwise, the Charging Party’s use of profanity was so opprobrious as to deprive him of the Act’s protection." The NLRB agreed.

In the third example, a Wal-Mart employee griped about his working conditions, and hurled insults towards his female manager. Two of his coworkers who were also Facebook friends commented on his post: one indicating that they found the post humorous, and one offered moral support. Upon review, the NLRB stated that they saw "no language suggesting the Charging Party sought to initiate or induce coworkers to engage in group action; rather they express only his frustration regarding his individual dispute with the Assistant Manager over mispriced or misplaced sale items. Moreover, none of the coworkers’ Facebook responses indicate that they otherwise interpreted the Charging Party’s postings."

What do these cases mean to the average employer who is made aware of disparaging comments on Facebook? First, it’s important to understand examples of real protected concerted activity:

  • Two or more employees addressing their employer about improving their pay.
  • Two or more employees discussing work-related issues beyond pay, such as safety concerns.
  • An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

If an employee is venting inappropriately, and not engaged in protected concerted activity, then you may have grounds for termination. However, if your social media policy prohibits employees from making defamatory statements, the policy should contain limiting language to ensure that it does not interfere with employee rights or restrain protected activity.

Social media is continuing to change our day-to-day interactions, and as it does, it will continue to change employment law. It’s vital for employers to stay abreast of changes, and adapt as not only technology evolves, but as our culture changes as well.

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