Facing a firing over Facebook


When an employee badmouths her company on Facebook, is it grounds for dismissal? It depends, is the answer from the National Labor Relations Board.  The cases detailed by the NLRB make fascinating reading.

Here's the NLRB press release web site. Some highlights:

To help provide further guidance, NLRB Acting General Counsel Lafe Solomon has released a second report describing social media cases reviewed by his office.

The Operations Management Memo covers 14 cases, half of which involve questions about employers' social media policies. Five of those policies were found to be unlawfully broad, while one was lawful and another was found to be lawful after it was revised.

The remaining cases involved employees who were fired because of Facebook comments they had posted. Several firings were found to be unlawful because of the unlawful policies. Even so, one of those five firings was upheld because the employee’s posting was not work-related.

The report underscores two main points made in an earlier compilation of cases:

• Employer policies should not be so sweeping that they prohibit the kinds of activities protected by federal labor law, such as the discussion of wages or working conditions.

• An employee’s comments on social media are generally not protected if they are simply gripes not made in relation to employee group activities.

The Acting General Counsel has asked regional offices to send cases to them as it tries to devise a consistent approach. To date, about 75 cases have been forwarded to the office.

The challenge is that the National Labor Relations Act was written before the existence of social media. Decisions in three cases pending before the board will give further guidance as the law around social media develops. Information on the three cases can be found here, here, and here.