Uncivil Discourse

What to do or not do about an employee's Facebook rant may be a tough call.

How it decides social media cases may not be what concerns U.S. employers most about the National Labor Relations Board right now, but it probably will be soon. Termination cases involving Facebook postings, mainly, are piling up, and the employers involved are finding their newly minted policies are judged to be overly broad. That the NLRB acting general counsel issued two reports summarizing social media cases within five months -- on Aug. 18, 2011, and Jan. 24, 2012 -- is significant in and of itself.

The second report covered 14 cases. Some involved workers discharged for either posting negative comments about their employers on their own Facebook pages or "liking" a co-worker's negative comment. Some of the posted comments were disparaging, offensive, or profane -- certainly enough to make any boss cringe and consider termination.

What to do or not do may be a tough call. In a case pending before the labor board when the second report was released, an NLRB administrative law judge concluded the employer's Internet/blogging policy was lawful but discharging two employees for violating it was not.

Acting General Counsel Lafe Solomon announced Jan. 24 that because of "the new and evolving nature of social media cases," he has asked NLRB's regional offices to send cases they believe to be meritorious to the agency's Division of Advice in Washington D.C., "in the interest of tracking them and devising a consistent approach. About 75 cases have been forwarded to the office to date," he noted.

This certainly bears watching. Solomon highlighted two main points:

  • Employer policies should not be so broad that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
  • An employee's comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

This article originally appeared in the April 2012 issue of Occupational Health & Safety.

About the Author

Jerry Laws is Editor of Occupational Health & Safety magazine, which is owned by 1105 Media Inc.

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