Oct 7, 2011

Can You Fire Your Employees for Dissing You on Facebook?

[caption id="attachment_393" align="alignright" width="425" caption="What's on Facebook?"]

[/caption] According to the American Management Association’s “2007 Electronic Monitoring and Surveillance Survey,”¹ as many as 12 percent of employers reported monitoring blogs to see what information was being disseminated about their companies. Another 10 percent indicated that they monitor social networks for the same purpose. With the meteoric rise of Facebook, Twitter, and other social networks, and with the increasing importance of social networks in the corporate and consumer worlds, it’s likely today that those numbers are even higher. Although it’s smart business practice to keep a handle on your company's online reputation, it’s not always advisable to take action based on what you find on employees’ Facebook pages. In fact, according to a recent opinion by an administrative law judge for the National Labor Relations Board, “Facebook firings" may be illegal business practices.

Facebook Firing Cases and the National Labor Relations Act

Since the mid-2000s when Facebook first came onto the scene, employees have been fired for their Facebook conduct. Fox News² in 2008 reported about one of the first casualties: an 18-year-old New England Patriots cheerleader who was removed from the squad after posting pictures of herself on Facebook. The pictures featured the cheerleader holding a Sharpie next to a passed-out man covered in offensive drawings. The more notable Facebook firing cases, however, came later when fired employees began to make allegations that their employers’ actions were in violation of the National Labor Relations Act. The suggestion that Facebook firings might involve the NLRA was important because the Constitution does not protect against employers interfering with free speech. Although governments are precluded by the First Amendment from blocking people’s right to exercise their freedom of speech, private employers are not precluded by the First Amendment from firing employees for negative comments made on Facebook. Since the majority of the United States operates under employment-at-will rules, employers were thus free to fire employees for bad Facebook feedback. When the workers suggested that the NLRA applied, they were trying to find protection for that speech in the NLRA.

Protected Activities Under the National Labor Relations Act

The NLRA was passed in 1935 to protect the rights of workers to unionize, strike, and take part in other concerted activity. The NLRA states: "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."³ The NLRA prohibited private-sector employers from interfering with these rights regardless of whether employees were in unions. The National Labor Relations Board was created in order to enforce the NLRA and protect employee rights. The question that arose, then, and that the NLRB began to try to answer, was whether employees’ actions in Facebook firing cases could be considered "other concerted activities."

The Cases

A series of cases occurred since 2008 that helped shape the rules for when the NLRA could provide worker protection—and when it couldn't.

The Chicago Tribune reported about a car salesman⁴ who complained on Facebook that the dealership he worked for served cheap food at a promotional event. The NLRB enforcement office determined the salesman's words were protected "concerted activity" because they dealt with the "terms and conditions" of his employment. However, the salesman also posted photographs to Facebook of a car accident, according to an NLRB press release.⁵ That car, which was driven into a pond, was from a nearby dealership that happened to be owned by the group that also owned the car salesman’s employer. The NLRB ruled that the salesman’s posting of the car-accident photographs was not protected speech, and therefore the salesman was not wrongfully terminated for those Facebook posts.
A Chicago bartender seeking relief after complaining to his sister and calling customers "rednecks" wasn't protected, because his complaint was made to his sister, not to fellow employees, according to memo from the NLRB. ⁷
Another NLRB memo noted that a worker at a nonprofit residential facility⁸ wasn't protected when she posted inappropriate comments about residents, because she wasn't making the comments to any co-workers.
One of the most significant cases, however, was NLRB v. American Medical Response.⁹ Labor Relations Today wrote about the settlement of the case, in which the NLRB filed a complaint against AMR, alleging that the company's overly broad internet policies violated the NLRA. The company had a policy prohibiting employees from making "disparaging, discriminatory, or defamatory comments when discussing the company" on the internet. The NLRB felt this policy could potentially interfere with an employee’s right to engage in protected activities. The case settled before the NLRB could make a final ruling, but this rule shed significant light on the position the NLRB would take.
In September 2011, the NLRB finally conducted a full hearing on a Facebook firing in a case called Hispanics United of Buffalo Inc. In this case, an employee posted a complaint about a co-worker on Facebook, according to the LexisNexis Litigation Blog.¹⁰ Four other employees commented with their own complaints. The complaints contained profane language, and the company fired the complaining employees for their comments. The NLRB determined the firing was a violation of the NLRA because the employees were exercising their rights to discuss matters related to working conditions.  In Hispanics United, the NLRB made clear that employees don’t need to be trying to change their working conditions, nor do they have to actually share their concerns with their employer. Simply talking about working conditions to fellow employees is enough for the speech to be protected.

The Comments

The Hispanics United decision doesn't come as a surprise, considering the NLRB Acting General Counsel's Aug. 18, 2011, memorandum.¹¹ The memo made clear that an employee’s Facebook posts would first be judged using a longstanding Meyers Industries test.¹² This test looks at whether the employee's Facebook post is a single complaint by that sole employee about management or working conditions, or whether the posted complaint is made with or on behalf of other employees. If the speech is found to affect other employees, as indicated by the comments or approvals of other employees, then the NLRB will determine whether the speech is protected. For this, the Atlantic Steel¹³ test is used. Under this test, posts are protected as long as they do not publicly disgrace employers. Public disgrace is interpreted narrowly, and even calling employers names may not be seen as public disgrace. Speech, therefore, whether found on Facebook or elsewhere, is broadly protected.

The Takeaway

These cases make clear that the NLRB is taking a protective stance and offering employees leeway when it comes to protections for their Facebook posts. It’s wise for employers to be cautious about terminating employees for making disparaging work-related comments on Facebook, especially if those comments are made to other employees. Employers should also be cautious about their Facebook policies after the American Medical Response case, because that and the NLRB opinions seem to suggest that blanket policies governing internet postings infringe on concerted protected activity. For more information, visit: 1. American Management Association: “2007 Electronic Monitoring and Surveillance Survey” 2. “Patriots Cheerleader Fired After Facebook Swastika Photo” 3. National Labor Relations Act 4. “NLRB Juggling More Facebook, Social Media Cases” 5. "Administrative Law Judge Rules Chicago Car Dealership Had Overly Broad Employee Policy, But Discharged Employee’s Activity Not Protected" 6. NLRB Office of the General Counsel—Advice Memorandum (Wal-Mart) 7. NLRB Office of the General Counsel—Advice Memorandum (JT’s Porch Saloon & Eatery Ltd.) 8. NLRB Office of the General Counsel—Advice Memorandum (Martin House) 9. “NLRB, Parties Settle ‘Facebook Firing’ Case” 10. “Hispanics United: NLRB Gives First Written Decision Involving Social Media” 11. “Acting General Counsel Releases Report on Social Media Cases” 12. “Unfair Labor Practice Law and Procedure” 13. “Decisions and Orders of the National Labor Relations Board, Vol. 351” The Small Business Authority cannot and does not give legal or tax advice and nothing contained in this article should be construed as such. Before taking any actions based on this or any other article published by The Small Business Authority, we strongly advise you to consult with an attorney and/or your tax professional.