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.

In the first case, Hispanics United of Buffalo, Inc.—which the NLRB characterized as the first such ruling of its kind—an ALJ found that five employees were wrongfully terminated based on Facebook posts they made regarding a coworker’s criticism of their job performance. More specifically, the ALJ ruled that Hispanics United of Buffalo (HUB) had wrongfully terminated the employees in violation of Section 8(a)(1) of the NLRA because their Facebook posts were protected concerted activities under Section 7 of the NLRA.

Hispanics United of Buffalo, Inc. involved a domestic violence advocate who was employed by HUB and often criticized other employees’ job performance and threatened to inform the employer’s executive director. Another employee posted on Facebook that “a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?”

Several employees responded on Facebook, but no one used HUB’s computers because it was not a workday. The domestic violence advocate complained to HUB’s executive director about the posts, and the executive director subsequently terminated the five employees who had made posts, claiming their conduct constituted as bullying and violated HUB’s policies.

Section 8(a)(1) of the NLRA states that it is “an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” in Section 7 of the NLRA, which, in turn, provides that “[e]mployees shall have the right ... to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 

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.” 

The second Facebook-related termination decision was Karl Knauz Motors, Inc.. In that case, an employee and other salespeople commented during a meeting that providing low-end food to customers at a dealership’s luxury car launch event was not appropriate. At the launch event, the employee took pictures of the food.

Later, in an unrelated event at a dealership across the street with the same owner, a driver accidentally drove a Land Rover into a pond. The employee again took pictures. He subsequently posted the pictures and critical comments about the food at the launch event and the Land Rover accident on Facebook. The employee later removed both posts at the employer’s request, but the employer met with him about the food- and accident-related posts and subsequently terminated him.  

The ALJ sought to determine whether the employee was terminated for the accident-related post or both posts and whether the posts were protected concerted activities. It later determined that the food-related post was protected concerted activity because the employee and others had discussed the inadequacy of the food offered at the launch event; the customers’ reaction could have impacted sales, which would have affected the salespeople’s commissions; and the tone of the post did not rise to the level of disparagement that would eviscerate the protection of the NLRA.

The ALJ found that the accident-related post, however, was neither protected nor concerted. That post had nothing to do with the terms and conditions of employment and was made by the employee alone, without any discussion with others. Finding that the employee was terminated solely due to the accident-related post and not the food-related one, the ALJ determined that his termination did not violate the NLRA.

As these cases show, the ever-increasing use of social media creates unique challenges in determining when businesses may properly terminate employees for inappropriate posts on Facebook or other social media. The limits provided by the NLRA are beginning to come into focus and will no doubt become sharper in the near future.

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