The NLRB Continues to Take Issue with "Facebook Firings"

Posted by in Employer-Employee Relationship, Human Resources, Technology / Comments

Has your company ever “dooced” anyone? “Dooce” is the term used among the internet and social media savvy to describe someone who has been fired for their website or online content.  The stories of employees being dooced have made their way both through pop culture and across the desks of business owners and advisers everywhere. Business owners who come to learn of an employee’s public declaration of their dislike of the workplace or their employer have elected to terminate their employees under the rationale, “why should I employ someone who is disparaging their job for all to see?”

This is generally a legitimate business decision that is rarely challenged on legal grounds. However in the last year, the National Labor Relations Board (NLRB)-the governmental arm of the National Labor Relations Act (NLRA)- has paid more attention to these media-termed “Facebook Firings.” Why?  For those operating in a non-unionized workplace, they may be shocked to find out, first of all, that the NLRA even applies to them.  In addition to protecting employees right to unionize and the rights they have once unionized, the NLRA protects ALL employees when discussing the terms and conditions of their employment.  According to the NLRB- this may include employee “discussions” on Facebook.

The first case to make such press involved an EMT posting, on her Facebook, page some insulting and disparaging comments about her immediate supervisor, with her co-workers chiming in. She was later terminated for making these comments, in violation of company policy.  According to the NLRB, the company’s policy regarding such commentary ran afoul of the NLRA because the employee’s post on Facebook was actually a “discussion” with co-workers about the terms and conditions of her employment.  The case settled before hearing, such that no ruling was issued as to whom was correct.

The NLRB later this Spring made headlines again, issuing once again a complaint against a company who fired several of their employees based upon statements they made on their Facebook pages.  The employer claimed the comments constituted harassment of a co-worker; the NLRB claimed their discussion was “protected, concerted activity.”  A hearing set for June 22, 2011 was adjourned to a later, yet to be determined date.

While we eagerly await a decision in this case, in the hopes of some precedent being established, employers are urged to review their Internet and Social Media policies to ensure the proper balance of company protection and compliance with laws such as the NLRA.