Employment Law Blog

News, trends and analysis in employment law and HR

Nov 22, 2010

NLRB challenges termination after Facebook post

Labor Relations 

The National Labor Relations Board (NLRB) has announced that its regional office in Hartford, Connecticut, is challenging the termination of an employee who posted negative comments about her supervisor on her personal Facebook page. The employee worked for American Medical Response and was required to complete an incident report after a customer complaint. This triggered two potential issues under the National Labor Relations Act (NLRA):

·                     First, she asked for a union representative to be present, but the company refused. The NLRB believes she had a “Weingarten” right to have a representative present while completing the report. See our Legal Guide, “Weingarten Rights” (1882).

·                     Second, she then posted criticisms of her supervisor from home on her personal Facebook page. The agency believes her actions were protected “concerted activity.” The NLRA protects the rights of most nonsupervisory employees to band together on concerns about wages, hours and working conditions. At least some of her Facebook friends were coworkers, and they posted supportive responses. The company terminated her, based on a policy forbidding “disparaging” comments about coworkers or management.

Tips: This appears to be the Board’s first foray into the intersection of modern social media and the NLRA. It’s uncertain whether the regional office’s allegations will hold up in the long run, but we can expect to see more cases along these lines, at both union and nonunion companies. For policy guidance, see our Model Policy, “Social Media Policy” (6310), and be sure to call your Vigilant staff representative before taking disciplinary action against an employee for their online posts.

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