NLRB Continues Aggressive Response to Employers' Social Media Policies It Deems Overbroad

The National Labor Relations Board recently issued two more complaints against employers that fired employees in response to the employees’ Facebook posts.

On May 9, the NLRB lodged a complaint against a non-profit organization in New York, saying it improperly fired five employees for Facebook posts that amounted to protected concerted activity. According to the press release, an employee posted on her own Facebook wall an allegation by a coworker that employees weren’t doing enough for clients. A group of employees responded to the Facebook post, defending their job performance and complaining about their working conditions (including work load and staffing issues). The employer fired the five employees who participated in the online discussion, saying the remarks amounted to harassment of the employee mentioned in the original post. The NLRB’s complaint claims the Facebook discussion was protected under the National Labor Relations Act because it involved a conversation among coworkers about the terms and conditions of employment, including their job performance and staffing levels.

The NLRB also issued a complaint last month against a Chicago BMW dealership that terminated the employment of a car salesman who posted pictures and commentary on his Facebook page criticizing a promotional event hosted by the dealership. (It sounds like he thought serving customers hot dogs and bottled water was a little lame and might negatively affect sales commissions.) The employee removed the posts immediately after management asked him to, but shortly thereafter, the car dealership still fired him. The NLRB alleges that this employee’s use of social media was also protected under the National Labor Relations Act. The dealership came forward to say the salesman was fired reasons other than his Facebook posts.

The NLRB has been increasingly involved in these Facebook firing cases. You may recall the NLRB complaint filed late last year charging a Connecticut employer with unfair labor practices when it discharged an employee who complained about her supervisor on Facebook. That case settled earlier this year.

These aren’t the only cases out there, and it seems the NLRB intends to keep a keen eye on social media issues. Employers should be careful when disciplining employees for their social media or online activities -- and should also ensure their social media policies or practices aren’t overbroad.

Check Out A Few of Erickson's Posts for IowaBiz on Technology, Internet, & Law

For those of you who may be interested, I thought I'd share a few posts I've written recently for IowaBiz, the official blog for the Des Moines Business Record, that touch upon technology, the internet, and the law:   

• May 31, 2011 post on a bill signed by Iowa's Governor that authorizes a study on online gaming.

• May 13, 2011 post discussing how employers may respond to the fairly common practice of employees including information about their workplace on Facebook or other social networking profiles. 

• April 13, 2011 post discussing the largely symbolic vote in the House to repeal the FCC's net neutrality rules (the measure isn't expected to pass the Senate).

• March 29, 2011 post discussing the importance of early planning stages in a company's creation of or updates to social media or social networking personnel policies.