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June 21, 2011

Two More NLRB Complaints Question Terminations for Facebook Postings

A Human Resources Bulletin

The National Labor Relations Board (NLRB) continues to take an active role in cases involving the use of social media. The NLRB recently issued two social networking-related complaints against employers in Illinois and New York on behalf of employees fired over discussions posted on their Facebook pages.

The NLRB issued one complaint against a Chicago area car dealership for firing an employee after the employee complained on his Facebook page that offering customers only hot dogs and bottled water at a sales event would hurt his sales commissions. The complaint alleged that the terminated employee “posted on his Facebook page employees’ concerted protest and concerns…which could impact their earnings.” An NLRB press release announcing the complaint stated simply that other employees “had access” to the Facebook page.

The NLRB also issued a complaint against a New York nonprofit organization which terminated five employees for alleged harassment of a co-worker. One of the five employees shared on her Facebook page that the co-worker claimed that the organization’s employees did not do enough to help the organization’s clients. The other four employees then responded, defending their job performance and complaining about work load and staffing levels.

Both NLRB complaints allege that the Facebook conversations are protected concerted activity under the National Labor Relations Act because they involve discussions among employees about their terms and conditions of employment. The acting NLRB General Council contends that Facebook comments are the social media equivalent of the traditional employee “watercooler” discussions. However, this analogy is suspect given the substantially greater audience inherent in a Facebook posting, both in terms of the number of viewers and the scope of the audience, as opposed to an office discussion around the watercooler. Hearings in both matters are scheduled for June and July, respectively.

In light of the NLRB’s increased focus on social media communications, employers should review their social media policies to determine whether the policies could reasonably be interpreted by employees (or the NLRB) as restricting employees’ rights to comment on or discuss their working conditions. Managers and supervisors should be cautioned and trained to coordinate with human resources regarding potential disciplinary investigations or actions which may be based upon employees’ use of social media or other electronic communications.

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