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NLRB Frowns on Dooced (Facebook Firings): Facebook Comments May Be Protected Concerted Activity

Darrell VanDeusen

Some of you may recall the story of Heather Armstrong, the first person to get "dooced" (fired for blogging about her employer).  The word "dooce" originated from Ms. Anderson's personal blog.  According to a recent Wikipedia search on Ms. Armstrong, in 2002 she " ignited a fierce debate about privacy issues when she was allegedly fired from her job as a web designer and graphic artist because she had written satirical accounts of her experiences at a dot-com startup on her personal blog,  Ms. Anderson did not challenge her termination and has refrained from identifying her place of employment in interviews.   Wikipedia claims that defines the term "dooced" as "getting fired for something you've written on your website." 

While there have been countless stories of other workers getting "dooced," only just recently did the National Labor Relations Board (NLRB) injected itself into the controversy.  The NLRB's General Counsel issued a complaint against a Connecticut ambulance service alleging that one if its union-represented EMTs was unlawfully terminated  for engaging in protected concerted activities protected by labor laws when she wrote harsh and negative comments about a supervisor on her own personal Facebook page.  After making the Facebook post comments, some of the employee's Facebook "friends" wrote further negative comments in response to employee's post about her supervisor, including several "friends" who were co-workers. 

Not surprisingly, the postings got back to the company.  The company investigated the Facebook postings and terminated the employee because the postings violated the company's internet and blogging policies.  The union here, Teamsters Local 443, filed an unfair labor practice charge with the NLRB.  In addition to the alleged unlawful Facebook firing, the union claimed that the employer denied the employee union representation during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy. 

The NLRB did its investigation and concluded that the employee's Facebook postings were protected concerted activity, and that the company's blogging and internet posting policy contained unlawful provisions.  The unlawful provisions included one that prohibited employees from making disparaging remarks about the company or its supervisors and another that prohibited employees from describing the company over the internet without company permission.  The NLRB concluded these provisions were an interference with the employees' right to engage in protected concerted activity.  A hearing on the case before an administrative law judge was held on January 25 and the matter is pending.

While this case arose in the union context, it is important to remember that all employees, whether unionized or not, have rights under the NLRA, including the right to engage in protected concerted activity such as discussions about workplace conditions.  Therefore, firing any employee, even a non-union employee, for complaining about the workplace, could result in an NLRA violation (or at the very least, an allegation before the NLRB).

The NLRB has previously issued decisions that employees have the right to engage in free speech as a form of concerted activity for their "mutual aid or benefit" by way of website postings and emails.  Therefore, the NLRB is not necessarily setting forth a new theory of liability so much as it is asserting a recent theme in a new context: social networking.  Because of the significant attention social networking websites have received over the years, and their increasing impact on the workplace (internally and externally), this case is one that all employers will be anxious to see unfold. 

Equally significant should be recognition that employers are well served with an effective social media policy - one that is neither too restrictive nor too lax - and that is enforced across the board.  Likewise, emerging legal trends in the discovery and use of electronic media in litigation plagues both employers and employees.   Plaintiffs' lawyers now routinely do checks on prospective clients to determine "what the Google says" about them. 

Read more articles by Darrell VanDeusen on the Kollman & Saucier, P.A. website.

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