Lately, Facebook firing cases have been on the rise as disgruntled employees take to social media, complain about work, and then get fired when management sees the post. Two recent cases help further define the line between lawful and unlawful firing based on Facebook posts.
Over the last couple years, the National Labor Relations Board (“Board”) has focused on social media policies and on disciplinary actions taken as a result of social media activity. The Board typically analyzes the social media activity to see whether that activity is “protected concerted activity” for which the employee cannot be disciplined under the National Labor Relations (“Act”). The test is whether the activity is engaged “in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” This can also include circumstances where an employee tries to initiate or prepare for group action or discussions prior to any actual plan for group action, and where complaints are brought to management’s attention. This is all distinguished from “mere griping” or complaining that is unrelated to any future action.
In Design Technology Group, LLC, the company’s hours of operations were longer than those of surrounding stores. Employees felt unsafe getting out of work that late and complained to their supervisor, the owner, and finally on Facebook. The employer fired the three employees who posted their complaints on Facebook. The Board found the firings unlawful. They found the employees engaged in protected concerted activity when they presented their concerns to the supervisor and owner and that their complaints on Facebook were a continuation of their complaints. The Board also found the posts themselves were protected and concerted activity. Completely unrelated to this analysis, but as has become the practice of the Board, the investigator pursued the company’s handbook and found that a “wage and salary disclosure rule” prohibiting disclosure of wage and compensation information to other employees and third party’s was also a violation of the Act. Lately, the Board has been reviewing employers’ policies that are totally unrelated to the allegations of misconduct looking for just such unrelated violations.
In Tasker Healthcare Group, ten former and current employees were engaged in a private conversation on Facebook. They were planning a social event when one employee said, among other things, that the employer was “full of shit” and to “FIRE ME . . . make my day . . . .” The employer found out the next day and the employee was fired. The company argued they fired the employee because she was no longer interested in working there. The Board held the comments did not constitute concerted activity because they did not involve shared employee concerns over the terms and conditions of employment. Rather, the employee’s comments were “individual gripes” which are not considered protected concerted activity. The Board stated the posts were not “inherently concerted” because they were not about mutual workplace concerns like wages or job security.
As you delve into discharges based on social media postings, work with counsel to ensure protected concerted rights are not at issue. Also be sure all your policies are compliant with Board standards because once a Board investigation starts, there is no way to control its scope.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
