Employees Fired Over Social Media, NLRB Reacts
Fisher & Phillips’s Michael Greco noted in his conversation with us about monitoring employee use of social media that “limits on individuals’ rights are legitimate if they impinge on others’ rights.” That’s particularly true when an employee’s rights impinge on his or her employer’s. So, can workers use their own computers, on their own time, to criticize their boss, their workplace, top management? Well, yes and no. The National Labor Relations Board (NLRB) has issued an opinion or two on that topic. Turns out it depends on the content of employees’ postings on their private Facebook accounts or Twitter.
Example #1: A Connecticut ambulance company had a policy forbidding employees from writing anything negative about the company in their social media. A disgruntled employee, denied union representation at a disciplinary meeting, trashed her supervisor on her Facebook page. Several co-workers chimed in to agree with her and make other comments about the employer. Shortly after the exchanges, the employee was fired. NLRB lodged a complaint against the company, asserting the prohibitions in its social media policy were too broad. Employees have a right, the board said, to discuss together the terms and conditions of their employment. Ultimately, the company settled with NLRB, agreeing to revise its policies.
Example #2: In May of this year, a New York nonprofit, Hispanics United of Buffalo, fired a number of employees who, again, chimed in on one person’s Facebook posting that criticized the employer. Many of the co-workers defended the employer, but they were fired anyway. NLRB lodged a complaint against Hispanics United, again because the Facebook “flame war” was a discussion of terms and conditions of employment. The case will probably be settled, but remember that this is a non-union employer under fire from NLRB.
Example #3: This case also involved a non-union employer: An Arizona newspaper had no social media policies but encouraged its reporters to tweet about newsworthy events to the public, to boost newspaper readership and online visits to its content. But the paper’s crime/public safety reporter went, in management’s view, way too far: His tweets demeaned reporters for other media, seemed to be pro-violence, were sexually explicit and full of profanities, and were offensive in other ways.
Management told the reporter several times to stop the inappropriate tweets, but he didn’t. So the paper fired him, and he complained to NLRB. Because his tweets were not discussions with co-workers about the workplace, the board said, they were unprotected, and his firing was legitimate. So, for now anyway, NLRB’s position is that some, but not all, postings are protected, even if they make the employer look bad. Depends on who says what online.