“Trash” Talk About The Employer On Facebook-Protected By The NLRB
Before rushing to discipline or terminate an employee who has posted negative comments on Facebook about the Company, well advised employers should carefully review their social media policies and determine whether taking such action might result in violating the employee’s Section 7 rights under The National Labor Relations Act which basically states (in part) that all employees, regardless of union membership, has the right to engage in “protected concerted activity” for the purpose of “mutual aid and protection.”
The law is quite clear that even one employee can engage in “protected concerted activity,” provided that activity has the result or even the possibility of effecting change for other employees.
As the universe of social media continues to explode at a dizzying pace, employers are struggling to keep up with and control the content of what their employees, among others, are posting on the internet for all to see. Many employers have reacted, understandably, by adopting highly restrictive policies threatening discipline or even termination of employees who post unflattering content about the employer, its products or services, management and/or fellow employees. In some contexts, such as the prevention of discriminatory, harassing or retaliatory conduct, such policies are both legal and advisable. However, to the extent they infringe on employees’ rights to engage in protected concerted activity, many such policies potentially violate the National Labor Relations Act. Many non unionized employers are surprised to hear that their employees have rights under the National Labor Relations Act, even in a non union environment.
Last month, the NLRB sued a car dealership which fired a salesman who used his Facebook page to complain about the food the dealership served to its customers during a recent promotional event. Importantly, this Facebook posting also mentioned the salesman’s fear that the perceived lousy food (hot dogs and bottled water) would impact sales commissions, and thus, alleged the NLRB, such posting constituted protected concerted activity, rendering the salesman’s termination a violation of his Section 7 rights. Similarly, the NLRB has ruled that employers violate their employees’ Section 7 rights by disciplining employees who post comments on the internet which are critical of their terms and conditions of employment. Conversely, in other cases, the NLRB has refused to proceed in other cases where the discipline resulted not from the complaints or concerns about terms and conditions of employment, but instead from disparaging comments about the products or services provided by the employer. For instance, the NLRB has specifically upheld Sears and K-Mart’s social media policy, even though it restricted employees from complaining about Company management, because the context in which such restrictions appear make it evident the intent of the policy is not to infringe on employees’ Section 7 rights. Given the disparity of conclusions drawn by the NLRB concerning various social media policies, it is difficult to predict how it might rule on any particular policy’s application to a particular termination or disciplinary action. Indeed, as in other areas, the law is evolving a few steps behind the evolving technology, leaving employers on uncertain ground in the meantime.
