Labor Board Says Facebook Posts Can Get You Fired

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Nov 25, 2014

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The National Labor Relations Board (NLRB) has ruled that it may be legal for employers to fire employees because of comments they posted on Facebook.

The NLRB

Thumbs DownThe NLRB is a federal government agency that “protects the rights of employees to act together to address conditions at work, with or without a union.”

According to its website, in 2010 the Board began receiving complaints from employees about employers’ social media policies. The Board investigated and determined that some such policies, and some employers’ actions in response to employees’ social media activities, violated federal law.

The Board has issued three reports, and made a number of decisions, on the issue of social media in the workplace.

The two main points of one of the reports were:

  • Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
  • An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

In one 2012 decision, the Board found that firing a BMW salesman for posting photos on his Facebook page of “an embarrassing accident at an adjacent Land Rover dealership,” did not violate federal labor laws.

In another 2012 case, the Board found that it was illegal for a non-profit organization to fire five employees who participated in a Facebook discussion of a co-worker who intended to complain to the organization’s management about their work performance. The Board found that this conversation was “concerted activity” protected by the National Labor Relations Act.

The Beacon Teen Center Case

The latest decision was issued in late October and involved employees of the Beacon Teen Center in San Francisco’s George Washington High School.

During the 2011-12 school year, one of the employees was one of the center’s activity leaders and the other was a program leader.Social Media

At a staff meeting in May of 2012, a supervisor asked employees to write down the pros and cons of working at the center. The employees wrote down eight pros and 23 cons. Afterward, some of the employees perceived that management had taken their complaints personally and was giving them the “cold shoulder” treatment.

Before each school year, the center sent re-hire letters to the employees it wished to retain. That summer, after the two employees at issue had received their re-hire letters, they had a Facebook conversation on one’s page that included the following comments:

  • I don’t want to ask permission, I just want it to be LIVE. You down?
  • I don’t feel like bein their b–ch and making it all happy-friendly-middle school campy.
  • F–k em. field trips all the time to wherever the f–k we want!

(Expletives edited.)

A former student chimed in with support for their plans.

The next day, another center employee sent screen shots of the conversation to the center’s management. The center then rescinded the re-hire offers for the two employees, saying:

These statements give us great concerns about you not following the directions of your managers in accordance with [the center’s] program goals…. We have great concerns that your intentions and apparent refusal to work with management could endanger our youth participants.

The employees filed suit, and an Administrative Law Judge ruled that the decision not to rehire them was not a violation of federal law. On appeal, the NLRB agreed.

The Board’s Decision

The Board found that the

pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the [Labor Relations] Act’s protection and render [the employees] unfit for future service.

If You’ve Been Fired over Facebook

If you’ve been fired as a result of a Facebook post, and the post involved what could be described as “protected concerted activity” – discussing terms and conditions of your employment with fellow employees – you may wish to consult a labor law attorney in your area.

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