A growing trend is developing: instead of discussing work-related problems with their supervisor or manager, disgruntled employees are posting such complaints in the public eye on social media sites such as Facebook and Twitter. Eventually the employer learns of the public venting, recognizes the damage it can cause the company’s reputation, and, in turn, fires the employee. Sounds appropriate, right? Perhaps not. Such postings may be protected under the National Labor Relations Act (“NLRA”). Accordingly, employers must tread carefully when disciplining or terminating employees for venting via social media sites.
The NLRA, which applies to most private employers, protects employees’ right to unionize, which includes their right to engage in “protected concerted activities.” Protected concerted activities are activities in which employees act together to change their wages, working conditions, or other terms and conditions of employment. It is an unfair labor practice for an employer to interfere with employees’ protected concerted activities. The National Labor Relations Board (“NLRB”), an independent federal agency charged with enforcing the NLRA, asserts that if social media discussions constitute protected concerted activities, the discussions are protected by the NLRA.
The NLRB has recently filed complaints on behalf of employees who were terminated after posting comments allegedly relating to their working conditions on social media sites such as Facebook. The NLRB avers that such postings constitute protected concerted activity and the terminations were therefore in violation of the NLRA. These cases are set to go to hearing this month.
The NLRB recognizes, however, that not all social media postings are protected by the NLRA. The NLRB recently determined that the termination of a crime and public safety reporter for his sarcastic tweets on Twitter did not violate the NLRA since the tweets did not constitute protected concerted activities. The Tucson reporter had posted tweets mocking numerous items ranging from the newspaper’s copy editors to the occurrence and non-occurrence of homicides in Tucson. The NLRB concluded that because none of the posts related to the terms and conditions of employment, the posts did not constitute protected concerted activity and the reporter’s termination was lawful.
The pending cases discussed above will likely provide additional clarification on the application of the NRLA to social media postings. Employers should use caution in terminating employees for their social media postings, particularly when the postings relate to wages, working conditions, or other terms and conditions of employment. The attorneys of Davenport, Evans have significant expertise in employment matters and can provide guidance in these situations. Please contact Jean Bender (jbender@dehs.com), Sandra Hanson (shanson@dehs.com), Anthony Hohn (ahohn@dehs.com), or Jennifer Keating (jkeating@dehs.com) for additional assistance.
Davenport, Evans is a full-service law firm of over 35 attorneys located in Sioux Falls, South Dakota.