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Labor Law and Facebook: Is Facebook the New Water Cooler?

This text was adapted from the  link below and posted on this blog by Risoleta Bernardes for EDUCATIONAL PURPOSES.  

By Brian Malcom

Can a person be fired for what they say on Facebook on their own equipment and on their own time?  The answer seems to be, “sure, sometimes, but not all the time.”  Now the National Labor Relations Board (“NLRB”) is getting in the mix.  The New York Times reports that the NLRB has accused a company of illegally firing an employee after she criticized her supervisor on her Facebook page. 

Apparently, an employee of the ambulance service was asked to prepare a report concerning a customer’s complaint about her work.  The employee requested representation from her union in order to assist her in preparing the report, but her request was denied.  That same day, the employee logged on to her Facebook page from her home computer and posted negative criticisms of her supervisor.  It seems as though she was not the only one with a bone to pick with her supervisor.  After she posted her comments, the employee’s co-workers began chiming in with their own supportive comments for the employee and their own negative comments about the same supervisor. 

The New York Times reports that “Ms. Souza . . . mocked her supervisor on Facebook, using several vulgarities to ridicule him, according to Jonathan Kreisberg, director of the [NLRB’s] Hartford office, which filed the complaint. He also said she had written, “love how the company allows a 17 to become a supervisor” — 17 is the company’s lingo for a psychiatric patient.”  Look for calling someone a “17” to become more popular on the social network.

The ambulance service company was not about to click the “Like” button on this activity by its employees.  The company suspended and later terminated the employee for her Facebook comments.  The company took the position that the Facebook postings violated the company’s internet and social networking policies.  But the story does not end there. 

The NLRB apparently got wind of the incident and launched its own investigation of the incident.  Following the investigation, the NLRB took the position that the employee’s Facebook postings constituted concerted activity that is protected under the National Labor Relations Act.  Further still, the NLRB also took the position that the company’s blogging and internet posting policy contained overly broad and unlawful restrictions on employees.  The NLRB believes the company’s policy chills employees from making negative comments or disparaging remarks when discussing the company or its supervisors.  The NLRB also took issue with the policy’s sweeping prohibition of depicting the company in any way on the internet without the company’s express permission.  Because of the overly broad nature of the policy and its chilling effect, the NLRB is of the opinion that the company’s policies interfere with a company employees’ exercise of their right to engage in protected concerted activity. 

The case is not set for hearing until January 25, 2011.


With this as prologue, the debate begins. Can Facebook or other social networking sites effectively be mediums for employees to self-organize, “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ” so as to invoke the protections of the National Labor Relations Act?  This blogger believes that end result will be that some activity, not all, on Facebook or other sites among employees, as defined by the Act, is within the protections of the Act.  As such, employers need to keep an eye on this case and review their own internet and blogging policies, lest they find themselves drawing the ire of the NLRB and facing allegations of unfair labor practices.

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