Labor and Employment Law

Employees May Not "Like" You on Facebook, But That's Not Grounds for Termination


by Krista N. Hardwick & Clay D. Creps

An employer's right to monitor and restrict what its employees say about the company on websites such as Facebook, Twitter and personal blogs may have drastically changed. The National Labor Relations Board ("NLRB") has just surprisingly found that a Connecticut employer violated the National Labor Relations Act when it fired one of its employees allegedly because she violated the company's social networking policy. The employee - Dawnmarie Souza - publicly ridiculed her supervisor on Facebook in posts that included obscenities and name-calling. Souza's Facebook posts also accused the company of having psychiatric patients working as supervisors. Several of Souza's coworkers allegedly read her Facebook posts and followed up with their own negative comments about the supervisor and the company.

In a surprising turn of events given the nature of the comments, the NLRB concluded that these employees' internet discussions were "protected concerted activity" for which they could not be disciplined or fired, akin to a gathering of employees at the company water cooler to discuss working conditions. The NLRB further concluded that parts of the employer's internet policy were unlawful, including the provision that prohibited employees from making disparaging remarks about the company or supervisors online. The case is scheduled to go to a hearing before an Administrative Law Judge on January 25, 2011, but may not be decided for months.

Does your company have a policy that restricts employees from posting comments on the internet that demean the company, managers, supervisors or fellow employees? If not, you are in the minority. Until now, any competent employment attorney or human resources professional you asked would have recommended implementing an internet and social networking policy for several reasons. Employers have faced liability for harassment and discrimination based on comments their employees posted online that were viewed by other employees. Critical comments made by employees on the internet may also negatively affect the company's reputation. Threats of injury or sabotage have been made about supervisors and co-workers on social networking sites. And, there is a risk that employees will reveal confidential and proprietary information when posting about the company online. A well-drafted internet and social networking policy helps to protect companies from these and other issues.

Practically speaking, the parameters of what employers may and may not prohibit in terms of employee internet communications is up in the air until the Administrative Law Judge rules next year. In the meantime, however, employers are well advised to have their internet and social networking policies reviewed by an employment attorney to ensure that they are compliant with the recent NLRB ruling. Employers should also consult with an experienced employment attorney before taking adverse action against an employee based on a violation of the internet and social networking policy.


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