Update on Facebook Firing Case
In January we informed you about a case in which a Connecticut employer terminated an employee allegedly for a post they made on Facebook. The case has become known as the Facebook Firing case. This case was recently settled so although we have no new law on the issue a review of that case and the issues surrounding it is important for employers as this issue will continue to be significant and can prove helpful when drafting your blogging and social media policies.
In the Facebook Firing case, the National Labor Relations Board reminded employers that the National Labor Relations Act protects employees engaged in “concerted activity” and prohibits employers from terminating an employee for negative statements about their supervisor or working conditions. This is true even if the employer is not unionized.
In the Facebook Firing case, the NLRB filed a complaint against a Connecticut ambulance company that allegedly terminated an employee for negative comments the employee made about her supervisor on Facebook. The company apparently had a social media policy that prohibited employees from making any comments about their supervisors or the company on any social media post. The NLRB argued that this policy may have been overbroad and violated the NLRA because it prevents employees from engaging in concerted activity.
What is concerted activity? It is when employees gather together to discuss their working conditions and their employer. Some of the Protected Section 7 activities include the right to engage in union-organizing activities such as discussing wages, hours, and other terms and conditions of employment. An employee blog or post on a social media site that focuses on these topics would likely be protected. The National Labor Relations Act allows employees to do this because it is a necessary activity and one they may engage in pursuant to deciding to bring in a union or vote for a union. A lot of managers might not realize that this law protects employee’s right to do this whether or not there is actually a union in place at the employer’s workplace. So this right exists in all workplaces, unionized or not.
Apparently the employee in this case had asked her supervisor to allow her to speak to her union representative to help her with an issue she had when a customer filed a complaint against her. The supervisor denied her request. The employee then posted negative and disparaging remarks about the supervisor on her Facebook page from her home computer. Her friends and co-workers saw her post on Facebook and responded which encouraged her to post even more negative comments about the supervisor. Her co-workers allegedly supported her comments on her facebook page which included these discussions with co-workers regarding being denied union representation by this supervisor. When the company became aware of the employee’s comments they terminated the employee for violating their social media policy although they later claimed it was for her poor performance and customer complaints against her and not for violation of this policy. Their social media policy prohibited employees from making disparaging comments about the company or the employee’s supervisor on any social media site.
The NLRB claimed that the policy and the termination violated the NLRA because it was prohibiting employees from talking about their terms and conditions of employment with other employees which they have a right to do under the NLRA.
So really the NLRB is sort of saying that Facebook discussions are like the new version of the old water cooler discussions in a workplace.
The NLRB and the company ended up settling the case. As part of the settlement, AMR said it would revise its policies so they do not "improperly restrict" employees from discussing their wages, hours and working conditions with co-workers and others while not at work and they also agreed to not discipline or discharge employees for having these discussions. In addition, AMR also promised that employee requests for union representation won’t be denied by the company or its managers and that employees will not be threatened with discipline if they do request union representation.
So what does this mean about drafting your social media policy in the future or revisions you should make to your social media policy.
Well management side employment attorneys are quick to point out that it might not require any change. This was not a court decision nor was it a decision by the entire NLRB. Rather, it was one charge and that charge was settled. In addition, it does appear that this case may be limited to its specific facts where the manager had denied union representation when the employee had requested it and the discussion that was taking place on Facebook centered around the denial of the request for union representation. In this case, the company policy also may have been overbroad because of the company’s prohibition on any comments about the company or supervisors on the internet and this could be seen as limiting concerted activity rights.
You should be aware that this is an actively changing area of law right now as a result of this case and the law is still unsettled with regard to this issue. Employers should keep their eyes and ears open for any new cases that come out dealing with this issue to ensure that their social media policies are drafted in the best way possible.
So before terminating an employee for statements they make on Facebook or any social media:
- Research what your state law requires regarding terminations for off-duty lawful activities
- Determine if the statements are lawful or unlawful
- If unlawful, such as defamatory or harassing then an employer may be able to terminate the employee
- Ensure that your social media policies are not overbroad and do not prohibit communication that is otherwise protected such as under the NLRA
- Always check with local counsel prior to terminating an employee
Prior to terminating any employee for a Facebook posting, employers should ensure that they have well-drafted social media policies that set forth in clear terms what employees may and may not do and the consequences for violations of that policy.