On September 2, 2011, Administrative Law Judge Arthur J. Amchan issued the decision that employees’ off-hours griping about their working conditions was protected by the National Labor Relations Act. This Act, 29 U.S.C. § 151-169, was created in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, business and the U.S. economy. The Act also created the National Labor Relations Board (NLRB) which is an independent federal agency vested with the power to prevent and remedy unfair labor practices committed by private sector employers and unions.
Judge Amchan ruled that a New York nonprofit must re-hire five (5) employees who were fired after complaining about their jobs on Facebook. On Saturday, October 9, 2010, an employee of Hispanics United of Buffalo-a non-profit that provides social services to low-income clients-posted a comment on Facebook. A flurry of posts followed with co-workers criticizing working conditions, including workload and staffing issues. Within days, the Buffalo director fired five employees on the thread, claiming their comments constituted harassment of an employee named in the initial post. One of the five fired took the complaint to the NLRB regional office which called for a hearing based on the allegation that Hispanics United had been “interfering with, restraining, and coercing employees in the exercise of rights” guaranteed by the National Labor Relations Act. The Judge ruled the employees were protected because theirs was a conversation among co-workers about the terms and conditions of employment, and that their conduct did not forfeit their protection under the law. Under the Act, employees have the right to discuss work conditions freely and without fear of retribution. Judge Amchan ordered the nonprofit to reinstate the five employees and issue back pay because they were fired illegally. He further ordered Hispanics United to post a notice in Buffalo about employee rights under the Act. Hispanics United has the right to appeal the decision to the National Labor Relations Board in Washington.
However, the National Labor Relations Board makes an important distinction in this decision saying employees do have the right to talk about work conditions on Facebook but employers are also allowed to take action against lone workers ranting online. Coloradoans have paid the price for bad behavior online. A high school teacher in Aurora was fired for posting on Twitter about having drugs on school grounds. An executive for an Englewood-based company lost his job and is facing criminal charges, for anonymous email threats and calls to a Colorado lawmaker. Another Colorado employee was recently fired for “gross misconduct” after posting a nine (9) sentence rant about his employer following a denial of sick leave. This employee is considering legal action to try and get his job back.
As an employer, to mitigate risk, develop a company-wide policy that clearly defines acceptable behavior in social media and dictates how employees can effectively communicate your brand culture, voice, and message. For employees, if applicable, review your company’s social media policy. If the company, does not have one, in any future posts, don’t mention the company by name, steer clear of mentioning specific projects or proprietary information. Employees should also utilize privacy settings on their social media pages. Finally remember that anything you post online is not private and could potentially cost you your job.
If you feel you were wrongfully terminated for a social media posting, contact a lawyer to discuss your legal options.