NLRB and Facebook Firings: Employer’s Worst-Case Scenario

The NLRB’s position on “Facebook Firings” (i.e., when an employee is terminated for comments posted on Facebook), remains a hot-button issue for union and non-union employers alike. The Board’s General Counsel recently issued three opinions in favor of employers who had been charged with violating the National Labor Relations Act (NLRA) when they terminated or disciplined an employee for social-media activity.

But that hasn’t calmed the many employers who worry about the consequences they could face if the NLRB takes a hard stance against a workplace social-media policy. So what is the worst-case scenario in the event the NLRB takes aim at your policy? A decision by Chairman Liebman and Members Becker and Pearce, issued on August 2, gives real insight into the answer.

In Bay Sys Technologies, LLC, Case 5-CA-36314, the employer initially filed an answer to the Charge, which was brought by former employee, Dontray Tull, but later withdrew it. When an employer withdraws its answer to an Unfair Labor Practice Charge, it is deemed to have defaulted and all of the allegations in the Charge are taken as true. According to the Charge (and, because the employer withdrew its answer, the Board’s Decision), the facts are as follows:

On August 6, 2010, Mr. Tull posted comments to other employees’ Facebook pages about the employer’s failure to issue employees’ paychecks on time. The messages were published a week later in a local newspaper. The same day, the company’s CEO sent an email to employees, in which he “expressed disappointment” that employees had elected to take their complaints to the media instead of using internal channels to resolve the issue. He also stated that, by going to the media, the employees had breached their non-disclosure agreements and threatened suit if the employees continued to publicly air their complaints. Finally, the CEO implied that employees who had gone to the press would receive less favorable performance reviews.

A week and a half later, the CEO and a Vice President called employees to the CEO’s office individually, where the employees were “interrogated” about their “protected concerted activities.” Employees also were told that, if they didn’t like their job, they could look for work elsewhere. Mr. Tull was terminated the following day.

So, assuming, as the Board was required to do, that all of these facts are true, what is the remedy? In other words, what’s the worst-case scenario for the employer if the NLRB determines that the employer violated the NLRA by terminating employees for engaging in protected concerted activity via their Facebook posts? This case holds the answer.

First, the employer was ordered to “cease and desist” from “expressing disappointment to employees” that they took their complaints to the media; telling employees that they violated their nondisclosure agreements for speaking with the media; threatening employees with legal action for engaging in protected activities; threatening employees with less favorable performance reviews; “interrogating” employees about their protected activities; telling employees that they should find a new job if they were dissatisfied; telling employees that they should have used internal channels to air their grievances; and terminating or otherwise discriminating against employees for their protected activities.

Second, the employer was ordered to take the following affirmative steps: (a) reinstate Mr. Tull; (b) pay Mr. Tull any lost earnings; (c) remove any negative references relating to the incident from Mr. Tull’s personnel file; (d)provide a variety of employee records to the NLRB for determination of other back pay due under the Order; (e) post a notice of rights; and (f) file a sworn affidavit of compliance.

So there you have it, employers. This is what could happen if you take an aggressive (very aggressive) stance against employees posting online about an internal issue as fundamental as they come (i.e., timely issuance of paychecks), and then elect not to defend the case. These are the remedies that the Board can, and likely will, award.

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