NLRB ruling protects employees’ work-related Facebook posts

Over the last several years, social media has become a major part of many Americans' lives. Facebook and Twitter are more than just mere websites - they are social hubs and forums for conversation on important (and not so important) issues.

Like any technological innovation, social media has altered the way we conduct our day-to-day lives. Workplaces have not been exempt from this change. Many employees use social media to stay in touch with their coworkers or to discuss their jobs with their friends. This has left some employers struggling with questions about how to respond when an employee makes negative comments about work online.

Is it wrongful termination to fire an employee who disparages the workplace on Facebook?

The National Labor Relations Board addressed this issue in December 2012 when it issued a ruling siding with a woman who had been fired from her job for discussing a dispute with a coworker on Facebook.

The controversy started when an employee posted a status update on Facebook indicating that she was upset with a coworker. She claimed the coworker had unfairly accused her and her fellow employees of being lazy, and asked other employees to comment with their thoughts on the issue. Many of them did, and the conversation was ultimately brought to the attention of management. Five employees were fired on the grounds that they violated a workplace harassment policy.

After the termination, the fired employees took their case to the National Labor Relations Board. The NLRB is a federal agency tasked with protecting the rights of public employees and union members.

The employees claimed that their firing violated a provision of the 1935 National Labor Relations Act that protects workers' rights to have conversations about improving their working conditions. The NLRB agreed, ruling that the Facebook status and its resulting comment thread qualified as "protected concerted activity" under the law.

Earlier in the year, the NLRB issued a similar ruling that sided with a Connecticut woman who was fired after posting critical comments about her boss on Facebook.

Ruling is limited in scope

Employees would be mistaken to interpret the NLRB's rulings as a blanket pass to say whatever they want on Facebook. There are a number of scenarios where work-related social media discussions might not fall under the umbrella of "protected concerted activity," especially if the posts are not geared toward remedying workplace problems.

More importantly, the NLRB's rulings only apply to a small fraction of the American workforce. Non-unionized private sector employees are not protected by the agency's decisions. Instead, most of these workers are governed by "at-will employment" rules, which allow employers to terminate an employee for nearly any reason.

Still, it is important for employees to take steps to protect their rights if they are terminated from their jobs. Employees with questions about the circumstances of their termination would be wise to meet with an experienced employment law attorney who can review their case and determine whether any laws were violated.