Technology: Labor law protections of social media posts

Two cases pinpoint the challenges Facebook comments raise for employers and employees.

Can employers terminate employees for their posts on Facebook or other social media outlets? Yes, although certain communications may be protected.

For example, the National Labor Relations Board (NLRB) has recently taken interest in this area, with the Office of the General Counsel issuing a report on social media cases in August. Two recent cases have been tried to Administrative Law Judges (ALJs) and provide guidance as to the limits that the National Labor Relations Act (NLRA) may place on such terminations.

The ALJ found that the Facebook posts were protected concerted activity under Section 7 because they were reacting to criticism of the employees’ job performance and because protection “does not depend on whether the employees herein had brought their concerns to management before they were fired, or that there is no express evidence that they intended to take further action, or that they were not attempting to change any of their working conditions.”

The fact that people other than HUB employees might have seen the Facebook posts was “irrelevant.” The ALJ further held that “[e]mployees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a coworker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.” 


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Patrick Patras

Patrick L. Patras is a partner in the Chicago office of Hinshaw & Culbertson LLP. He concentrates his practice in the areas of intellectual property...

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