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NLRB settlement suggests employee Facebook posts are protected

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in Career Management,Employment Law,Firing,HR Management,Human Resources,Leaders & Managers,Management Training,Workplace Communication

Can you fire an employee if she ridicules her boss on a social networking site? What seems like a simple “yes” answer isn’t so simple anymore.

In another example of the complex interplay between social media and HR, the National Labor Relations Board (NLRB) reached a settlement on Feb. 7, 2011, in the closely watched “Facebook Firing” case. 

The message for employers: Think twice before you try to restrict or punish employees for trashing their bosses (or the organization) on Facebook or other social networking sites. Employees now have more power to claim that such criticisms are “protected activity” under federal law.

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The controversy began last year when a Connecticut ambulance company fired a worker who complained about her supervisor on Facebook. the employee posted a comment about her boss on her Facebook page: “Love how the company allows a [psychiatric patient] to be a supervisor.” She used several vulgar words to communicate how she felt about her supervisor. Other co-workers joined the online boss-bashing.

The company fired the woman, pointing to its policy that prohibits employees from depicting the company “in any way” on social media sites.

The NLRB stepped in and filed an unfair labor practice complaint against the company. It was the first case in which the NLRB argued that workers’ criticisms on social networking sites are “protected concerted activity.”

Usually, protected concerted activity refers to employee efforts to unionize, but the National Labor Relations Act (NLRA) also protects the rights of all workers to discuss the pay, benefits and other conditions of their employment with co-workers and others, even in a nonunion workplace. It doesn’t matter, the NLRB says, whether those discussions occur in-person or online.

When it filed the complaint, the NLRB noted that, "Whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions...and they have the right to do that."

The NLRB also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting and communications between employees.

Under the terms of the settlement, the company agreed to revise its electronic communication rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions. The employee and company reached a separate, private agreement to settle her unlawful termination complaint.

This week’s settlement “sends a message about what the NLRB views the law to be,” said the NLRB regional director who approved the settlement. (NLRB, Case 34-CA-12576, Region 34)

Translation: Review your social media policies to make sure they only restrict communications about things you can legitimately restrict, like disclosure of confidential information. If your policies are overly broad, you may be liable for interfering with employees’ rights to engage in concerted protected activity in violation of the NLRA. Consider training employees on proper use of social media.

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