Fired Because Of Facebook: NLRB General Counsel Addresses Offensive Facebook Posts In The Context Of Protected Activity
Three recent National Labor Relations Board (NLRB) memoranda concluded that employees posting complaints about their jobs on social media websites may not be protected from disciplinary action even if their complaints are job-related. In each of the three cases, the NLRB Division of Advice recommended dismissal of the claims that employers violated the NLRA when they disciplined or discharged employees for Facebook activity.
In the first case, an employee was disciplined for profanely criticizing local management on his Facebook page. The remarks were visible only to his Facebook friends, some of whom were co-workers. Although two co-workers posted notes of support, the Division of Advice found that no evidence of protected concerted activity, as the Facebook posts were essentially a personal gripe made only on his own behalf. The employee had not included any language suggesting that his co-workers initiate or participate in group action; instead, the employee expressed his frustration over a single incident with a particular manager.
Likewise, the Division of Advice found no evidence of protected concerted activity where an employee in a mental health institution engaged in a Facebook conversation with a set of friends about the facility's clients. Her employer learned of the Facebook conversation when it was reported by a former patient, and the employer fired the employee. None of the employee's co-workers were Facebook friends, and the employee admitted she had never discussed her Facebook posts with co-workers. Therefore the employee had not engaged in protected concerted activity because she was not seeking to "induce or prepare for group action," and because her Facebook posts did not mention any terms and conditions of employment.
In a third case, the Division of Advice concluded that a bartender had not engaged in protected concerted activity when he complained about his employer's tip pooling policy on Facebook. Even though the bartender's complaint centered on his terms of employment, he did not direct his Facebook post to co-workers or discuss the post with them. In short, he was simply complaining and was not seeking to induce collective action.
Finally, the General Counsel also released a report summarizing the outcomes and reasoning behind more than a dozen cases in the past year involving employees' use of social media and employer social media policies. In each of the three memoranda and the vast majority of the social media cases, the General Counsel used similar legal standards, including:
• When an employee "acting with or the authority of" coworkers (a) "seeks to initiate, induce or prepare for group action," or (b) "brings truly group complaints to the attention of management," that employee's action is protected.
• When the employee's activities are "the logical outgrowth of concerns expressed by the employees collectively," the employee's activities are protected.
• When the employee is engaged in activity "solely by and on behalf of the employee himself," the employee's activity is unprotected.
• When the employee's comments are "mere griping," as opposed to "group action," the employee's comments are unprotected.
While not comprehensive, these guidelines will assist employers considering disciplining or terminating employees for offensive social media posts. Employers should consult competent employment counsel for additional guidance during the disciplinary process.
For more information on social media guidelines, compliance, and resulting employee discipline, please contact Foster Pepper's Employment and Labor Relations Practice Group.