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Why You Can't Fire Employees For Complaining On Facebook

ImageMany businesses spend a significant amount of time each year monitoring employee social media profiles, watching for any inappropriate comments or behavior. Sometimes, an employee will say something on Facebook or Twitter that is extremely derogatory toward the business or their boss. While no company should want or approve of such behavior, there are circumstances and situations where simply firing the employee is not an option.

From a legal perspective, worker rights are protected under the National Labor Relations Act ("NLRA") of 1935, and the National Labor Relations Board exists to monitor and interpret that resolution and its ramifications. Now, decades later, the NLRB is being asked to apply a 1935 law to contemporary social media activity.

What the NLRB determined late 2012 is that employees who utilize social media to criticize their employer or a co-worker are protected under the law if more than one employee participates. According to the act,

Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment.

In the case in question, two employees at the same business were in regular communication throughout their typical workdays. The first employee would often complain to the second employee about other employee's performance. At one point, the second employee had heard enough and decided to vent her frustration on Facebook. She posted that this other employee "feels that we don't help our clients enough at [the business]. I about had it! My fellow coworkers how do u feel?" The status was posted on her personal computer after hours, and four other co-workers, from their personal computers, posted comments and Liked the status. They were summarily fired by the company.

In determining that the company was in violation of the Act by discharging these employees, the NLRB has decided that participating in a Facebook discussion constitutes "concerted activity."

Certainly, the NLRB has not ruled that employees can say anything they want. A large part of their deliberations was determining whether or not the comments and activity fit the criteria outlined in Sec. 7 stipulating that the activity take place "for the purpose of collective bargaining or other mutual aid or protection." Since criticism of an employee's job performance could potentially cause them to lose their job, it was determined that the discussion was for the purpose of providing mutual aid or protection, and therefore the entire activity was protected under the law.

A single employee who comments on their own, with no participation from other other employees, receives no such protection. That could potentially be considered libel, depending on the nature of the comments, and business owners would be within their rights to terminate employment and perhaps even seek restitution.

While Facebook was the platform for this specific case, the nature of the ruling ensures that any social network is protected, so Twitter, Google+, LinkedIn and other networking platforms are all included. It is logical to deduce that an individual's personal blog site would also be similarly protected, again, assuming that criticisms posted within a blog entry were subsequently backed up by comments and opinions from coworkers.

The bottom line though is that business owners and HR departments must be aware of their legal rights, and the rights of their employees. By the same token, every person who works for a company needs to understand what they can and can't do, what they can and can't say. It is in everyone's best interest for a company to take the time to develop a Social Media Policy. Depending on the size of the company, they may want to hold a few Social Media Seminars. While taking the time to make sure employees understand what they shouldn't be doing online, even on their own time, these companies can also take advantage of the seminar structure to educate and encourage employees on what they could be doing. Each employee can potentially be great brand ambassador for your business, and participate in a company culture of content marketing.

And when an issue does arise on social media, sometimes firing the employee(s) isn't the best option. If they are voicing criticism of the business, take a moment to evaluate the criticism objectively. If there is any validity to what is being said, it would be better to address the problems being identified and let those employees rave about how you fixed the issues.

Have you seen or been a part of any such social media issues? How do you think this relates to the recent PR department firings at HMV, or the waitress firing at Applebee's? Do you think you need a Social Media Policy at your company?

Image courtesy of kasiaeryn, Flickr.


Join The Conversation

  • DavidHarlow's picture
    Feb 21 Posted 4 years ago DavidHarlow

    The NLRB has published a series of guidelines on social media policies (linked to below), which are worth looking at -- based on the recent cases discussed in this post and other cases as well. If you bring up NLRB rulings with your employment lawyer, you may hear that since the DC Circuit Court of Appeals invalidated the recess appointments of NLRB commissioners by President Obama, all recent rulings are invalid, and therefore should not be considered binding on anyone, and that we all need to sit tight until this whole recess appointment thing is sorted out.

    Naturally, we can't wait indefinitely without tending to our employee social media policies, and contrary to some of my "brothers at the bar" I suggest that we all need to maintiain a commonsense approach to social media policies, balancing the various interests at play.

    I blogged about this issue on my home blog, and invite you to check out the post, including a link to the NLRB policies:

    Employee Social Media Policies After NLRB Appointments Invalidated by Federal Court ... Everything You Know Is Wrong? (HealthBlawg) – http://shrd.by/E4XPDs  

  • Samuel Chan's picture
    Feb 20 Posted 4 years ago Samuel Chan

    Hey Mike,

    Very well written article. Just wanted to add my two cents here on the following line,

    'If they are voicing criticism of the business, take a moment to evaluate the criticism objectively." 

    I think, in my humble opinion, that objective evaluation of criticism does not exist. Just like objective criticism - that's an oxymoron. My company do have a social media posting policy but a policy is just that - a policy. It's implementation is dependent on the interpretation of the policy, and at such, are subjected to the enforcer's view of the whole situation. It just isn't fair, but that's quite the point. 

    I would argue that a social media policy really isn't the solution to the problem. Rather spend time and effort in blending the right mix of culture and a common ground of understanding between each team player, than to attempt on working out a "bullet-proof" social media policy. With human factor in the mix, I believe it is a more sustainable and empowering approach. 



  • Poeabby Masoud's picture
    Feb 19 Posted 4 years ago Poeabby Masoud

    That is true. However, things like unionizing that are protected rights are tricky and can still be fireable offences just on not terms of unionizing alone and I feel like the same can be said for employee moves made on social media. I agree with you however. I do think it is a bit brash to fire an employee for a little complaint about their day and etc. It is best for the company to reflect on the complaint rather than make such a move. I think perhaps a social media policy would let people know what might be a problem intially so they are not so shocked later if they break a rule, they can also defend themselves in a case where their social media activity does not necessarily impede on their SM policies.

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