Does the NLRA prohibit an employer from terminating an employee for the employee’s negative comments made about his or her job and posted on Facebook?
This has been the question of the mind of many employers and employment lawyers since late last year, when the NLRB filed a complaint against a Connectitcut employer for terminating an employee, in part, for comments she posted on Facebook about her supervsior. Claiming that the posts constituted activity protected by the NLRA, the complaint took aim at the employer’s social-media policy as an unlawful infringement of its employees’ rights.
Despite the small wave of panic that seemed to spread following the NLRB’s issuance of the complaint, there was no real precedent to suggest that a well-drafted social media policy would be subject to an NLRA attack. For example, in 2009, the Board reviewed a social-media policy and determined that it did not interfere with the rights provided by the NLRA.
And, in May, the NLRB’s General Counsel issued an Advice Memorandum in which it found that an employer had not violated the NLRA by terminating an employee for posting negative comments about the employer on Twitter. But, earlier that month, the NLRB announced that it had issued a complaint against a non-profit for allegedly terminating five employees for their Facebook comments. And the Chicago Regional Office issued a complaint at the end of the same month against a car dealership for firing an employee based on his complaints about an upcoming promotional event that he . . .you guessed it. . . posted on his Facebook page.
It appears that the tide has turned yet again–this time in favor of employers. The NLRB’s Division of Advice has issued three Advice Memoranda, each of which directly addresses the termination of an employee for comments made on social-networking sites. In each, the Division concluded that there had been no unlawful activity by the employer because the termination decisions were based on employees’ personal gripes, which fall outside the scope of protected activity, and which constituted acts of misconduct for which the employees could be terminated.
Seth Borden, at Labor Relations Today, has posted an excellent and concise summary of each of the three cases, which include JT’s Porch Saloon, Wal-Mart, and Martin House. (I’ve combined the three memoranda into a single PDF document, available here).
In each of these cases, the critical question is whether the employee has engaged in protected “concerted activity.” As the Division explained, comments made “solely by and on behalf of the employee” are not concerted activities under the NLRA and are not subject to the protections of that law. Thus, these three memoranda serve as important reminders of a fairly basic idea–interpersonal disputes or gripes, without more, may be a lawful basis for discipline or termination.
The lesson for employees? Learn to get along with those with your coworkers and supervisors. If you can’t play well with others, don’t publicize it. And, finally, don’t post it online if you don’t want it to be repeated over and over and over.