CAN YOUR EMPLOYER FIRE YOU FOR YOUR FACEBOOK POSTINGS?

Social media is ubiquitous. Employees use their Facebook and Twitter accounts to keep up with family and friends, to network, to post music, to inform their online “community” of personal and/or social events, and, sometimes, to vent about their day on the job. What happens when one of their Facebook friends shares the online rant about a supervisor with said supervisor or someone else on the job? And what if the employer has a policy that prohibits employees from making “disparaging” remarks about their supervisor online? Can the employee be fired? The National Labor Relations Board(NLRB) says, no.

In a case of first impression, the NLRB filed a complaint against an employer under the National Labor Relations Act for firing an employee for posting remarks about her supervisor on her Facebook page. The employer, American Medical Response of Connecticut, had a policy that prohibited employees from depicting the company “in any way” on Facebook or other social media. The NLRB took the position that, under the National Labor Relations Act, employees have a right to speak jointly about their working conditions. The NLRB likened Facebook to the modern water-cooler where employees gather to vent or complain about working conditions, which is protected activity. The NLRA provides workers with a right, under federal law, to form unions and it prohibits employers from taking retaliatory actions against employees for discussing working conditions or for attempting to form a union. The act protects union and non-union employees. The case was eventually settled by the company.

This case is a major coup for employees who “gather” online to discuss the conditions under which they work. Obviously, the case does not stand for the proposition that employees can make racist or slanderous (false) statements about their organization or supervisors and get away with it if it is discovered by the employer. It does however acknowledge the normality of social media in our society, and that employees have a right to engage in conversation to discuss, debate or otherwise speak about the terms and conditions of the employment, and have that conversation protected by federal law, especially where several employees are discussing the same employer or supervisor .

In a climate where unions are being demonized, public sector employees are losing the right to collectively bargain, the NLRB case provides a modicum of protection to employees.

Bryan K. Bullock is a Indiana attorney who handles employment discrimination, civil rights and police misconduct cases. He was a recipient of the Frederick Douglas Human Rights award in 2007, along with his fellow habeas counsel, for his work in representing Guantanamo Bay detainees. He is available for speaking engagements as well as legal representation.

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