A disgruntled employee posts unflattering comments about her employer on her Facebook page. She is particularly scathing about her supervisor, referring to him, among other things, as a “scumbag.” Naturally, upon learning of these comments, the employer fires her. The employer couldn’t possibly face legal problems, could it?
These facts are drawn from an actual case now pending before the National Labor Relations Board (“NLRB”). The NLRB is charged with enforcing the National Labor Relations Act (“NLRA”), legislation passed more than seventy-five years ago at the height of the Great Depression. The idea behind the Act was to protect employees who sought to engage in concerted actions with respect to the terms and conditions of their employment. Remember that during the Great Depression millions of Americans were unemployed, driving down wages and providing ready replacements for unhappy employees, particularly those who engaged in union organizing activities. The notion behind the Act was that by protecting employees, wages would rise, creating more consumer spending and stimulating the economy.
As noted, the NLRA prevents an employer from “interfering with, restraining and coercing employees in the exercise of the rights guaranteed in the Act.” These protected concerted activities include the right to discuss and make criticisms of management.
The issue, then, is whether an employee who makes disparaging posts on Facebook, even referring to her supervisor as a scumbag, is engaging in protected concerted activity under the NLRA.
The complaint is set to be tried on January 25th before an Administrative Law Judge. When the decision is issued, it can then be appealed to the full National Labor Relations Board, whose decision can, in turn, be appealed to a federal circuit court and ultimately to the U.S. Supreme Court. In the interim, however, it is important that employers develop a social media policy which takes into account the issues presented by the National Labor Relations Act. In fact, the NLRB has issued an “advice memorandum” through its Office of General Counsel. You should be certain that your company’s policy be clear and in compliance with the dictates of the NLRB’s advice memorandum. For assistance in this area, please contact us.