Unlawful to Fire Employee for Facebook Rant?

Editor: Heath H. Galloway

Facebook is everywhere, and its implications for employers can be maddening. It is one thing to prevent your employees from using Facebook while they are at work, but what control do you have over what your employees say on Facebook when they are not at work? Can you discipline an employee for calling his or her supervisor a psycho on the World Wide Web? Perhaps not, according to the General Counsel of the National Labor Relations Board.

On Oct. 27, 2010, the NLRB's Hartford regional office issued a complaint against a Connecticut ambulance service asserting that the termination of an employee who bad-mouthed her supervisor on Facebook, and the policies on which the termination was based, were illegal under federal law. The employee's comments, which included a reference to her supervisor as a psychiatric patient, drew support from co-workers that were her Facebook "friends." According to the complaint, when the company learned of the employee's online rants, it suspended and ultimately terminated the employee on the grounds that her Facebook postings violated the company's Internet policies. In the General Counsel's view, "the employee's Facebook postings constituted concerted protected activity, and the company's blogging and Internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in a way over the Internet without company permission." See News Release, National Labor Relations Board, Office of the General Counsel, Nov. 2, 2010. In the Board's view, such policies "constitute interference with employees in the exercise of their right to engage in protected concerted activity." Id.

On Monday, February 7, the parties settled the charge so the General Counsel's complaint was not adjudicated. However, the issuance of the charge itself was significant and represented an apparent departure from the Board's previous stance on such issues. It remains to be seen where the Board will draw the line between protected and unprotected conduct in the context of social media. Regardless, however, employers should think twice before restricting workers from talking about their jobs on social media outlets or disciplining employees for their on-line activities. Employers should also consider whether or not they need to implement social-networking policies, or, if such policies are already in place, to reevaluate them to determine whether they create any potential problems.

Although non-union employers generally do not think much about the National Labor Relations Act, the law applies whether you have a union or not. Specifically, the Act prohibits employers from curtailing employees - union and non-union - from engaging in concerted protected activities, which include discussions of the terms and conditions of their employment. Thus, even employers with a non-union workforce could still run afoul of federal law when disciplining employees for what they say about their jobs on-line.

For more information about this topic, please contact Heath H. Galloway at 804.420.6466 or hgalloway@williamsmullen.com .

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