An emerging and evolving arena of employment law litigation involves employee social media postings such as Facebook and Twitter postings. Many employers believe, perhaps mistakenly, that they are free to discipline employees when their employees disparage their employer in the social media. However, the National Labor Relations Board considers social media posting involving the terms and conditions of work to constitute concerted activity protected under the National Labor Relations Act.
The National Labor Relations Act is enforced by the National Labor Relations Board. Most think of the NLRB in terms of unions and union activities. To the NLRB, however, there is little distinction between an employee picketing before his employer’s plant and posting complaints on Facebook or Twitter. Depending upon the nature of the complaints, both activities may be protected and the employer who takes disciplinary action may run afoul of the Act.
In one case, for example, five employees were fired after they posted negative comments about a non-profit social services provider. The employees complained of their workload and complained of coworkers. One posting asserted that a coworker had not properly assisted a client. The employer became aware of the postings and fired the employees. The employees filed a charge with the NLRB. The NLRB found that the employees had engaged in protected, concerted activity. Concerted activity occurs when an employee acts with or on the authority of other employees and not solely for the benefit of the employee himself. The NLRB found that the employees’ Facebook complaints about staffing levels constituted concerted activity because the complaints directly implicated the terms and conditions of employment. Furthermore, that the employees’ posts consisted of swearing and sarcastic remarks did not remove the remarks from being protected under the Act. Because the employer fired the employees as a result of their Facebook posts, the employer violated the Act.
In another case, the NLRB found a car dealership violated the Act by firing a salesman after the salesman posted derogatory remarks about the dealership’s sales event on Facebook. Specifically, the salesman complained of the poor quality of food and beverages (hot dogs, potato chips and soda) offered potential car purchasers during the event. The salesman posted that the food served sent the wrong message to potential customers. After the employer received a call from another dealer about the posting the employer fired the salesman. The NLRB found that since the salesman received a commission from the sale of vehicles the disparaging remarks about the sales event constituted protected activity.
In yet a third case, the NLRB found that an employee’s Facebook posting about the employer’s tax withholding practices was concerted activity because the employee was seeking to initiate group action related to the terms and conditions of work. The employer, a sports bar, had a tax withholding policy which resulted in several employees owing taxes at the end of the year. The employees complained on Facebook. The complaints included expletives and disparaging remarks about the intelligence of the bar’s owners. The employer’s attorney sent letters which threatened to sue the employees for their “defamatory statements” and the employees were fired. Both the threatened legal action and the termination of employment were found to have violated the Act.
The bottom line, employers must act cautiously in disciplining employees who have aired complaints through the social media. Employers are urged to consult with counsel prior to initiating any disciplinary action.