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'Facebook firing'

The settlement of a complaint issued by the National Labor Relation Board (NLRB) involving the firing of an employee of a Connecticut company who posted negative comments about a supervisor on Facebook could have far-reaching implications. It should have employers in Mississippi taking a harder look at their social media policies to ensure they are not in violation of the National Labor Relations Act (NLRA).

The case was not a simple “Facebook firing.” It also involved union representation, which clouds the NLRB’s action. Would the NLRB have filed its complaint if the case had not involved the alleged barring of union representation to the fired worker?

That is open to debate. What is clear, however, is the NLRB is watching social media policies closely, and even non-unionized companies in the right-to-work State of Mississippi can expect to come under increased scrutiny when it comes to policies involving social media and “concerted activities” among employees.

“Mississippi is a buyer’s market for unions,” said Randy Patterson, a shareholder in the Jackson office of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., who concentrates his practice in labor and employment law.

Patterson said complaining about the boss, pay and other workplace issues traditionally has been “a few employees standing around the water cooler,” Social media, however, had made possible airing such complaints for hundreds if not thousands to read.

The bottom line is employees – unionized and non-unionized alike – have a right under the federal NLRA to criticize the company and/or its leaders, and employers that set social media policies that prohibit or attempt to prohibit such activity can be in violation.

“I think it is clear that the NLRB is targeting social media policies. There are companies that do not have union participation and think this does not apply to them, and that is just not so,” said Alison Vance, an attorney with Butler, Snow, O’Mara, Stevens and Cannada, PLLC.

Vance pointed to the fact that the NLRB is soliciting potential social media violations from its regional offices as a clear indication that it is looking at all companies, including those that are non-unionized.

A recent report from NLRB’s acting general counsel Lafe E. Solomon supports Vance’s claim. In August, Solomon released a summary of 14 alleged social media violations from across the U.S. All were referred to the NLRB by its various regional offices.

Of the 14 cases, nine involved employees’ use of Facebook. Solomon said in four of those cases, employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees that is allowed under the NLRA.

One of those cases was the aforementioned Connecticut Facebook firing. In October 2010, NLRB set a precedent when it filed a complaint against American Medical Response of Connecticut Inc. after an employee was fired for posting derogatory statements about a supervisor on Facebook.

The NLRB alleged this was a violation of federal labor law, citing the National Labor Relations Act that allows employees to discuss the terms and conditions of their employment with co-workers and others.

The NLRB further alleged that AMR of Connecticut “maintained overly-broad rules in its employee handbook regarding blogging, Internet posting and communications between employees, and that it had illegally denied union representation to the employee during an investigative interview shortly before the employee posted the negative comments on her Facebook page.”

Interestingly, NLRB said the employee’s use of the term “scumbag” to describe her supervisor was within the bounds of NLRA.

Solomon said, “…the name calling was not accompanied by verbal or physical threats, and the Board has found more egregious name-calling protected.”

Last February, on the eve of going to trial, the NLRB and AMR of Connecticut reached a settlement. The case was resolved through a separate, private agreement between the employee and AMR of Connecticut.

According to U.S. Chamber of Commerce, these 14 cases are a small sampling of recent NLRB actions. The Chamber found 129 cases that the NLRB had reviewed.

NLRB is showing a willingness to work both sides of the labor fence. In one of the 14 cases identified by Solomon, one involved a labor union. NLRB charged the union’s posting of its findings of an investigation of a non-union subcontractor on YouTube and Facebook was coercive and in violation of Section 7 of the NLRA.

While social media policies need to be specific to ensure employers stay out of NLRB’s way, Vance said all policies should start with a broad question.

“Employers need to ask themselves, “Do I want to encourage social media, or discourage it?” Vance said. She added, “Employers need to know that having an overly broad social media policy is not much better than having no policy at all.”


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