The National Labor Relations Board (the “Board”) has recently offered guidance, including fourteen case summaries, on when an employer can lawfully fire an employee for her Facebook or other social media postings. At issue in the cases filed by the Board is whether or not the content of an employee’s social media posting for which she is fired amounts to concerted protected activity under the National Labor Relations Act.
Concerted protected activity is any conduct, alone or in concert with other employees, “for the purposes of collective bargaining or other mutual aid or protection.” Union membership is not required and, importantly, individual employees can engage in protected activity on their own if their object is to initiate or induce group action. So how do you know if your employee’s Facebook post, griping about her coworker, is an individual gripe or one made for “mutual aid or protection?” Often, you won’t.
So what can an employer do? Recent Board guidance does clarify some issues:
- If the social media post calls for comments from or other inducement to action by coworkers, there is a good chance it will be protected.
- If the social media post addresses issues that have been raised by employees in the workplace or deals with terms and conditions of employment, there is a good chance it will be protected.
- If the social media post relates to matters of mutual concern amongst employees, it is likely to be protected.
- If your employment policies or work rules explicitly prohibit protected activity, or would reasonably “chill” an employee’s exercise of protected activity, they will likely be found to be unlawful.
- Social media includes all forms of multimedia communication – from Facebook to Tweeting, from texting to audio and video podcasts and everything in between.
Facebook and other social media sites are clearly here to stay and the Board is clear that there are times when even inappropriate postings will merit protection. It is important for employers to craft clear and thoughtful social media policies that are narrowly tailored to protect your company, while not so broad as to limit your employees’ protected rights. This is a rapidly evolving area of the law, and one where compliance requires clear and constant attention.