Social Media And Firing: A New NLRB Social Media Complaint Creates A Legal Minefield For Employers

Employers should not assume they are aware of the latest legal decisions governing their employees’ social media communications. With Facebook alone boasting over 800 million active users — not to mention the explosion of Twitter, LinkedIn, My Space, and other social media sites — employee complaints about their work or supervisors now frequently appear publicly, on the web. Many employers are responding with social media policies that prohibit saying anything negative about the workplace (or even discussing the workplace) social media. A number of employers are disciplining or firing employees for doing so. A new National Labor Relations Board (NLRB) Complaint suggests these responses are not permissible.

The NLRB is the federal agency generally charged with enforcing unfair labor practices under the National Labor Relations Act. The NLRB regulates employer activity in the private sector in the context of labor unions, collective bargaining, strikes, and other types of concerted activity to improve working conditions. As labor union activity has decreased, the NLRB has expanded its reach into activity on the web. The NLRB is now restricting the policies employers can impliment to control employee interactions on social media sites – regardless of whether the employees form unions.

Up until recently, generally speaking, employment was considered “at-will.” An employee without a written contract could generally legally be fired at any time, for any reason, or for no reason at all, as long as the reason was not discriminatory or in retaliation for certain protected whistle-blowing activity. However, a recent case before the NLRB, American Medical Response of Connecticut v. International Brotherhood of Teamsters Local 443, appears to have created a new protection for at-will employees. Employees may now engage in online communications with each other about their working conditions.

In American Medical, an off-duty employee posted on Facebook negative comments about a supervisor. Other employees joined in, commenting on her post. American Medical then terminated the employee for her comments, and for violating the company’s social media policy.

Prior to American Medical,the law was an employer in such circumstances had the right to fire such an employee. In American Medical, however, the NLRB found the employee’s comments about her supervisor to be protected concerted activities — protected complaints about her working conditions — and that her firing interfered with her right to engage in such concerted activities. According to the NLRB, Facebook activity is like a water cooler discussion. Employees, the NLRB decided, have a right to discuss their supervisors and working conditions online, just as they do in person, around a water cooler. The NLRB therefore issued Complaint against the employer. An NLRB administrative law judge is set to hear the case in January. If the decision is upheld, the NLRB will have created a new exception to the employment at-will doctrine.

Employers should be updating their personnel manuals to cover social media. Before you draft your social media policy, and before you make employment decisions based on your employees’ use of social media, however, retain an experienced attorney to help you avoid the emerging risks in the field.