Firing Your Employees And Facebook

Posted on December 14, 2011

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Social media sites and the workplace can be a risky combination for both employees and employers. Beyond the obvious drawback of distracting an employee from his or her actual work, some employees have faced termination for posting unflattering remarks about their employers or customers on social networking sites such as Facebook and Twitter.

Some employees are fighting back against this perceived invasion of privacy by citing the 1935 National Labor Relations Act. The Act contains a provision stipulating the right for employees to complain about their employers. However, the nature of these complaints is still open to debate.

According to the Wall Street Journal, “the law gives private-sector employees certain rights to complain about pay, safety, and other working conditions. It doesn’t protect simple griping.”

While this law has been used successfully in some cases, the boundaries are murky for employees trying to make their case.  Most of this is due to the fact that there have been a small number of these cases – this is a relatively new phenomenon for this 80-year-old law.

One successful case of the law’s protections involved Dawnmarie Souza who was fired after calling her employer a “scumbag” on Facebook. According to the Wall Street Journal, “She was unhappy the supervisor had questioned her about a customer complaint, according to the NLRB’s investigation. The NLRB’s complaint on Ms. Souza’s behalf—the agency’s first ever involving a firing related to social media—came after NLRB lawyers in Washington concluded the firing was illegal because the postings were made during an online discussion among employees about supervisory action, which is considered ‘protected concerted activity’ under the law.”

Souza’s case marks how employers should increase their awareness of such social media rules.  While some of these provisions could be potentially harmful for employers, the Act itself and its interpretations are so broadly defined that in many cases, employees’ actions do not fall under the Act’s protections.Here are some of the provisions that have been made clear in interpreting the National Labor Relations Act:

1. Workers are free to discuss with each other pay and working conditions on social networking sites, but it must be a group activity in order to be protected.

2. Complaints made in the context of an individual’s posting are not protected.  These types of remarks must be made in a group setting in order for the law’s protection to apply.

3. Verbal threats against employers or employees are never protected by the Act.

4. Name-calling is allowed but is judged by the Act on its severity, so this is up to interpretation. For employers, establishing a social media policy can be the first step towards avoiding problems that arise from Facebook and Twitter comments.

Brice Johnston
Johnston Firm, P.C.

Photo by Bizior.

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