Say one of your employees posts vulgar comments on her Facebook page mocking her boss. Other co-workers see it and add their own comments. You have a policy against such actions, so you can fire her, right?
Not so fast.
In what could be a groundbreaking case, the National Labor Relations Board (NLRB) filed an unfair labor practice complaint last month against a Connecticut company that fired a worker who complained about her supervisor on Facebook. This is the first case in which the NLRB has argued that workers’ criticisms on social networking sites are protected activity.
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Why protected? The National Labor Relations Act (NLRA) gives employees—both union and nonunion—the legal right to discuss pay, benefits and other working conditions with one another. The labor board is arguing that it doesn’t matter where those discussions occur—either in person or online.
The labor board also argued that the company’s social media policy was “overly broad” and interfered with employees’ ability to “exercise their rights to engage in protected concerted activity” to discuss working conditions.
The case: The American Medical Response ambulance company has a written policy that bars employees from depicting the company “in any way” on social media sites. Employee Dawnmarie Souza made negative comments about her supervisor on her Facebook page from her home computer. The comments drew supportive responses from co-workers. She was fired soon after. Expect a ruling in mid-2011. (NLRB, Case 34-CA-12576, Region 34)
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Advice: Having a broad policy that says employees cannot make any disparaging comments about supervisors is illegal. But previous case law has given employers the right to fire employees whose comments rise to the level of disloyalty.
In this case, the fact that several employees were discussing the supervisor’s work performance likely led the NLRB to consider it a “concerted” activity.
“Employers should be reviewing their social media policies to ensure that any restrictions on communications about the company are tailored to things the company can legitimately restrict, like violations of the company harassment policy or disclosure of confidential information,” says Brian Hall, attorney with Porter Wright Morris & Arthur LLP. “But those restrictions should not be so broad as to prohibit all employee discussions of the company on their social media pages.”
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