No NLRA protection for Facebook complaints not directed to coworkers
In two separate cases, the General Counsel of the National Labor Relations Board (NLRB) recommended that NLRB regional offices dismiss complaints that employees were illegally disciplined for their Facebook posts. In the first case, a Wal-Mart customer service manager wrote on her Facebook page that the assistant manager had chewed her out after merchandise was placed in the wrong area. In her Facebook post, she called the assistant manager a derogatory name and said “if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!” A few coworkers made supportive comments in response. When Wal-Mart found out, the employee was put on a one-day paid suspension as a “decision day” that precluded opportunities for promotion for 12 months. The General Counsel felt that the employee was making a personal complaint, and wasn’t trying to rally her coworkers to take concerted action, so therefore the Facebook post wasn’t protected under the National Labor Relations Act (Wal-Mart, NLRB Office of General Counsel Advice Memo, July 19, 2011).<!—?xml:namespace prefix = o ns = “urn:schemas-microsoft-com:office:office” /?—>
In the second case, an employee worked the night shift at a nonprofit residential facility for people with mental illness. During one of her shifts, she posted comments about it being spooky at night in a mental institution and that she couldn’t tell if one of her clients was laughing at her or at the voices in her head. None of her coworkers were Facebook friends, but a former client was, and reported the comments to the employer who promptly fired her. The General Counsel said the employee’s comments were definitely unprotected because they weren’t communicated to coworkers and they weren’t expressing collective concerns of employees regarding the workplace (Martin House, NLRB Office of General Counsel Advice Memo, July 19, 2011).