NLRB Scrutinizes Discipline for Offensive Facebook and Twitter Posts

The National Labor Relations Board (NLRB) has put a high priority on cases involving employees who were disciplined for posting on social media. Under the National Labor Relations Act, most non-management employees have the right to discuss wages, hours, and working conditions as protected, concerted activity. When those discussions are held through online social media such as Facebook and Twitter, employers often are unhappy with the result. However, as we saw earlier this year, both union and nonunion employers must exercise caution before taking action against these employees. While there are no official NLRB decisions to provide guidance, recent NLRB communications help predict the agency’s enforcement position.

Not protected: A newspaper reporter who was assigned to report on crime and public safety for the Arizona Daily Star was fired for postings on his work-related Twitter account that included criticisms of a local TV station, and encouragement of higher homicide rates in Tucson. The NLRB Office of General Counsel wrote a memo advising that the firing was permissible because the messages weren’t related to the workplace (NLRB Office of General Counsel Advice Memo, April 21, 2011).
Protected: An employee of online retailer was fired for posting comments on her Facebook page about the company and possible violations of the California Labor Code. Other employees, who were her friends on Facebook, had responded to her posts. The company settled an NLRB complaint, agreeing to make up for the employee’s lost earnings, and to post a notice for 60 days acknowledging employees’ rights to comment about their working conditions through social media (NLRB press release, April 27, 2011).
Protected: Five employees at Hispanics United, a New York nonprofit, were fired for a Facebook discussion over job performance, staffing, and work load problems, because the employer believed they were harassing another employee who stated that they didn’t do enough to help clients. The NLRB has filed a complaint against the company (NLRB press release, May 18, 2011).
If you haven’t established a social media policy, now is the time to do so. For assistance, refer to MSEC’s Employee Handbook Planning Guide, or call your MSEC representative.