Can you Fire An Employee For A Negative Posting on Facebook? Maybe Not.

By Sheri D. McWhorter

In past issues we have written about Facebook and some of the recent challenges to employers’ social media policies. It now appears that the National Labor Relations Board (NLRB) may be weighing in on employer social media policies, asserting that employee postings may be protected under federal labor law.

Certain provisions of federal labor law, specifically, the National Labor Relations Act (the “Act”) apply to non-union employers, as well as employers who have a union in their workplace. Section 7 of the Act, commonly referred to as the protected “concerted activity” provision, protects employees’ rights to engage in “protected concerted activities,” whether or not the employees are represented by a union.

Protected concerted activities are usually group activities (two or more employees acting together) in an attempt to improve working conditions, such as wages and benefits. For example, where two or more employees address their employer about improving their working conditions and pay, they may be engaged in protected concerted activity. Other examples include situations where a single employee speaks with her employer on behalf of herself and one or more co-workers about improving workplace conditions, or where two or more employees discuss pay or other work-related issues with each other. The Act forbids employers from interfering with, restraining, or coercing employees in the exercise of their rights related to engaging in protected, concerted activities, or taking any action against the employees that would “reasonably tend to chill” the employees’ exercise of their rights under the Act.

On November 2, 2010, the NLRB announced plans to prosecute a Connecticut ambulance service for allegedly publishing and enforcing an overly broad policy on employee blogs and Internet posting, in violation of Section 7 of the Act, and then allegedly firing an employee for posting negative comments about her supervisor on the employee’s personal Facebook page.

The NLRB charges that after a customer complained about the employee, the employee was asked to prepare an incident report. The employee allegedly requested and was denied union representation related to the possible discipline she faced. The employee’s supervisors allegedly threatened her with discipline because she had requested union representation. According to an NLRB press release, “Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee.” Three weeks later, the ambulance service fired the employee.

According to the Complaint, the company’s Blogging and Internet Posting Policy provided “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” It also provided “Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the Vice President of Corporate Communications in advance of the posting.”

According to the NLRB, after conducting an investigation, the agency determined that the Facebook postings were “protected concerted activity,” and that the company’s policy on employee blogs and Internet postings contained unlawful provisions, including a provision that barred employees from making disparaging remarks when discussing the company or supervisors, and another unlawful provisions that prohibited employees from depicting the company in any way on the Internet without permission from the company. The NLRB found the company’s policy on employee blogs and Internet postings “constitute interference with employees in the exercise of their right to engage in protected concerted activity,” and were therefore unlawful. The NLRB charged the company with “interfering with, restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act.

The Act applies to most employers in the private sector. It appears social media policies may be gaining as an area subject to heightened scrutiny by an invigorated NLRB. All employers, whether unionized or not, should review their social media polices to see whether those policies may be viewed as overly broad, and therefore violative of their employees’ Section 7 rights.

A hearing before an NLRB administrative law judge is scheduled for January 25, 2011.

About the Author
Sheri D. McWhorter, JD, SPHR is a Florida Bar Certified Specialist in Labor & Employment Law, and is President and Managing Shareholder of WorkplaceLegal SolutionsSM, Law Offices of Sheri D. McWhorter, P.A.  With offices in St. Petersburg and Tampa, WorkplaceLegalSolutions provides client focused employee relations counseling and proactive employment law solutions to businesses and non-profits throughout Florida and the greater Tampa Bay area.  For assistance, please call 866. 829.1883.