It is becoming increasingly common for disgruntled employees to air their employer’s dirty laundry on social media sites like Facebook, and in so doing, publicly share unflattering information about his or her employer that it wants to remain private. For example, an employee might post on Facebook that his “boss is a jerk”, that the company treats its clients poorly, or even discriminates against certain classes of employees or customers. In response to an employee’s public disclosure on social media of unflattering company information, employers may want to terminate their loose-lipped employees. However, would such a termination be lawful?
The answer is that it depends. The National Labor Relations Act (NLRA), which governs employers of both union and non-union employees, protects employees from discipline for engaging in what is called “concerted activity”. “Concerted activity” means circumstances in which individual employees seek to initiate, induce, or to prepare for group action, for the purpose of improving their working conditions. If a communication satisfies the foregoing criteria and is not too opprobrious, then an employer may not terminate or discipline an employee for making the statement, even in a public forum. If an employer does terminate an employee in violation of this law, then the NLRA may reinstate the employee and award back pay. The purpose of this law is to enable employees to communicate amongst themselves in an effort to improve their work conditions without concern for resulting discipline by their employer.
Of course, this law came into existence long before the creation of Facebook and other social media sites, and determining whether an employee’s post on social media publicly criticizing his employer satisfies the legal requirements for protected concerted activity is difficult, as some of the examples below make clear. In one case, an employee posted on Facebook that a supervisor told her that “we don’t help our clients enough”, which is obviously information that most employers would not want shared publicly on social media. After the employer terminated the employee responsible for the Facebook post, the National Labor Relations Act Board overruled the termination, concluding that the post was “concerted activity” since it was engaged with the object of initiating group action amongst the employees. However, in a different case, an employee wrote several Facebook posts regarding his supervisor, complaining that the supervisor had hired incompetent employees and suggesting the supervisor was having affairs at work. The posts also referred to the supervisor as a “bitch.” In this case, the NLRA board upheld the termination, finding that the complaints about the supervisor and her treatment of coworkers were made solely on behalf of the employee, with no intention of instigating group action or bringing group concerns to management.
In sum, although employers may want to deter and terminate employees who post negative information about the companies on social media, employers need to be careful to make sure they do not run afoul of the NLRA by terminating or disciplining an employee engaged in protected concerted activity. If you have any questions concerning the issues raised in this article, please contact Joshua Waldman.