Disparaging Remarks about Employers on Facebook May be Legally Protected

Imagine a situation where an employee is transferred to another department because of lack of work. The employee, furious about the move, posts a curse-laden rant about the company on her Facebook page, and some of her coworkers gleefully respond in kind in comments to the Facebook post, bad-mouthing the employer and calling for a class-action suit. The company has a policy that explicitly prohibits employees from making disparaging comments in any media. Does the company have the legal right to fire the worker for violating its policy?

The answer, surprisingly, may be no. It hinges on a provision of the National Labor Relations Act that says, “Employees shall have the right to … engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In a recent case involving an employee of a collection agency, the National Labor Relations Board found that the company’s policy, which prohibited making disparaging comments about the company in any media, including electronic media, was unlawful because it “would reasonably be construed to restrict” employees’ rights to engage in conduct that is protected under the NLRA. The NLRB also found that firing the employee because of her Facebook comments was unlawful because the Facebook discussion between the employee and her coworkers “clearly involved complaints about working conditions and the Employer’s treatment of its employees and clearly fell within the Board’s definition of concerted activity, which encompasses employee initiation of group action through the discussion of complaints with fellow employees.”

In addition, the NLRB found that the firing was unlawful because it was made pursuant to the employer’s “no disparaging comments” policy, which the Board deemed overly broad. The Board did note that an exception to its rule applies if the company fires an employee because the disparaging comments actually interfered with the employee’s own work, the work of other company employees, or company operations. The exception did not apply in this particular case.

The general counsel of the NLRB issued a report in January 2012 that looked at social-media cases the Board had reviewed over the past year. The report found that five out of the seven employers' social-media policies examined were overly broad.

Laws involving employees’ use of social media are constantly evolving. WeComply’s online social media training course provides current information to employees so they can make appropriate and responsible decisions about uses of social media that might affect their employers. 

Categories: General Business Compliance
Tags: Social Media