Hunton Employment & Labor Perspectives

In October 2010, the National Labor Relations Board (“NLRB”) raised the eyebrows of employers and observers when its Hartford, Connecticut Regional Office issued an unfair labor practice complaint against an employer after it allegedly terminated an employee for posting unflattering statements about her supervisor on Facebook.  The NLRB and the company settled the complaint in February 2011, on condition that the company revise its rules so they do not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work.  The employer also agreed that it would not discipline or discharge employees for engaging in such discussions.

Signaling the NLRB’s intent to continue to closely probe other employers’ disciplinary actions against employees for work-related complaints on social media, on April 12, the NLRB’s Office of the General Counsel issued a memorandum to its regional offices adding social media disputes to the list of matters that the regional offices must submit to the NLRB’s Division of Advice for a decision on how to proceed.  The Division of Advice is responsible for issuing opinions on difficult or novel labor issues.

Two unfair labor practice complaints recently issued by NLRB regional offices against employers illustrate the close scrutiny the NLRB is giving to employers’ termination decisions when presented with allegations that an employer terminated one or more employees for statements made on social media.  On May 9, the NLRB Regional Office in Buffalo, New York filed a complaint against an employer alleging that it illegally fired five employees for posting critical comments about working conditions on an employee’s Facebook page in response to a coworker’s allegation that the employees failed to do enough to help the organization’s clients.  Less than two weeks following the issuance of this complaint, the NLRB Regional Office in Chicago issued a complaint against a local car dealership alleging unlawful termination of an employee for posting comments on his Facebook page that were critical of the dealership for serving only hot dogs and bottled water during a customer event.

Although it is unclear whether either of these employers will ultimately be adjudged to have committed an unfair labor practice for the employee terminations at issue, these recent complaints underscore the NLRB’s growing alertness to the topic of social media and its role in the workplace.   Further, these complaints counsel employers to carefully consider their social media policies and the legal risks associated with terminating employees for criticizing the company on social media forums such as Facebook and Twitter.