Is the NLRB finally hammering out a sensible approach to social media?
Since the National Labor Relations Board got involved in a Facebook firing case in 2010, firms have been questioning just how and when it’s OK to discipline and fire staff for comments made on social media.
Recently, the agency released six new advice memoranda on cases involving staffers who were fired for social media comments.
Each case involves employees who filed complaints with the agency alleging that they were illegally fired for online comments.
How the NLRB ruled in each case stands as (mostly) good news for companies moving forward.
Policy was overbroad
Let’s start with the only losing case for a company, which comes from wire service Thomson Reuters.
The firm encouraged staff to post on its Twitter feed about how Reuters could create a better workplace. An employee responded that one way would be to “to deal honestly with Guild members.”
The next day the employee got a phone call from the bureau chief reminding her that the firm’s social media policy prohibited posts that damaged the company’s reputation.
Though the staffer wasn’t formally disciplined, she refrained from Tweeting again – and then complained to the NLRB, who ruled in her favor.
The agency said the firm’s policy of prohibiting employees from damaging the company’s reputation online without providing examples or limitations of what staffers could and couldn’t post could prevent staff from engaging in protected activity.
Employee discussion not protected
The next noteworthy case involved a therapist who complained on her Facebook wall about staff meetings.
Along with a co-worker, she complained about the meeting on Facebook. Her actions got her fired.
Yet, the NLRB ruled in favor of the company here.
Wait – isn’t this that a perfect example of employees using social media to discuss work conditions?
Not quite. The NLRB found that even though the therapist interacted with a co-worker online, neither person was trying to change the terms and conditions of the workplace – nd that meant she wasn’t protected.
The ruling suggests that just because two or more employees discuss work online doesn’t guarantee the discussion’s protected.
Instead, moving forward, it appears the agency will examine not just the original post made by an employee but also the reactions of colleagues to that post and how they interpreted it.
4 additional cases
The NLRB also ruled on four other cases, all in favor of the companies.
Why? Each of these cases involved a simple personal gripe – and that’s not protected, according the agency:
- A respiratory therapist was fired for updating her Facebook status during an ambulance ride to complain about her co-worker, who was sucking on her teeth.
- A bank teller was fired after she complained on Facebook that co-workers had complained about her performance to her supervisor.
- A nurse posted on a co-worker’s Facebook asking if a manager was still “making life miserable.” When the manager found out, he fired her.
- An accountant made a Facebook post falsely claiming that her firm engaged in fraudulent accounting practices and was fired when she refused to remove the post. The agency said that although the original post might have been seeking group activity, refusing to remove it after learning it was false meant she was no longer protected.