Employers can sometimes lawfully fire employees for posting critical comments on social media (Facebook, etc.) about their company, even if limited to discussing only their own jobs, and even if the comments are posted on the employee’s own time and using their own computer system.
But that’s not always the case.
The National Labor Relations Act (NLRA) prohibits employers from penalizing employees acting as a group to try to improve the terms and conditions of their employment. Engaging in what the NLRA calls “protected concerted activity” applies to employees whether or not they are in a union.
In a recent case, the National Labor Relations Board (NLRB) ruled that employees of a sports bar who posted or “liked” Facebook posts that were critical of their boss were unlawfully fired because the posts constituted protected concerted activity. The posts were prompted when several employees discovered that they owed more in income tax than they expected. They discussed it among themselves in the workplace and then brought up the issue with the bar’s owner, who scheduled a staff meeting.
Before the scheduled meeting, an employee started a discussion on her personal Facebook page claiming the employer didn’t know how to prepare tax paperwork properly. Other employees, as well as customers of the bar, participated in the obscenity-laced discussion. The bar owner found out about the discussion and fired one of the employees who had posted in the discussion, saying she wasn’t “loyal enough.” The owner also terminated an employee who had merely “liked” one of the posts.
The NLRB said the posts were protected concerted activity because they involved four current employees and were part of a discussion that had started in the workplace as a complaint about the owners’ tax-withholding calculations. The NLRB ordered the bar to reinstate the employees.
As a common theme we ask readers who employ others to check with your attorney before you terminate an employee for social media conduct.
Three out of four employees access social media every day on personal devices while at work. Fewer than 50% have a social-media policy that applies to employees outside of work. Providing employees with social-media training is becoming increasingly important, but if you decide to embark on this journey of figuring out what “social-media training” is, be sure to first load up on a good dose of common sense!
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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