We promised a series of posts discussing the National Labor Relations Board’s most recent report on social media cases (see NLRB Issues New Report on Facebook Firings), so here you go! First we’re going to discuss the unlawful Facebook firings. In our next post we’ll discuss terminations the NLRB actually found lawful – yes, the NLRB has concluded some Facebook firings are lawful! In the following cases, however, the employers were not so lucky. Remember – the NLRB’s position on social media and discipline impacts all employers – not just employers with a unionized workforce!
Case Study No. 1: In this case, the employee was transferred to a position where she was likely to earn smaller production bonuses. She was mad, so she posted on Facebook – using unspecified expletives - that, “the Employer had messed up and that she was done with being a good employee.” The Charging Party was Facebook friends with several co-workers, former co-workers, and her direct supervisor. After she posted the comment, current and former co-workers posted comments indicating their support, including a comment by a former employee saying employees should bring a class action lawsuit. When the employee returned to work, management showed her a copy of her Facebook wall and told her she was terminated.
The NLRB found the termination unlawful because the discussion “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.”
Case Study No. 2: In another case, an employee complained on Facebook that she didn’t receive a promotion, saying that “she had pretty much been told that all of the work she had been doing wasn’t worth anything and that she couldn’t do it anymore.” Three coworkers responded to the post, resulting in a Facebook conversation in which they complained about the woman who had gotten the promotion and about mismanagement. The Charging Party also complained that “she had not received a raise or a review in three years, that the promoted individual did not do any work, and that the Employer didn’t know how to tell people when they did a good job.” A coworker commented “that it would be pretty funny if all of the good employees actually quit.” The Charging Party then responded that she appreciated the support her coworkers had given her and “that this wasn’t over by a long shot, and that her days at the employer were limited.” The Charging Party and one of the coworkers were fired, and two others were disciplined.
The Board found the comments protected concerted activity, and in particular, the posts about everybody quitting and that “this wasn’t over by a long shot” as a call to group action.
Case Study No. 3: Finally, in yet another case discussed in the NLRB’s recent report, several employees discussed on Facebook some “drama” at the popcorn packaging plant where they worked. The “drama” involved an employee being written up for being “a smart ass,” and that they were going to have to work on Saturday to make up for lost time. An employee also commented that the “Employer complains about who goes on break and for how long and that they were not doing what they should be doing.” Another employee then posted various comments, including that she “hated that place and couldn’t wait to get out of there.” She also stated that “the Operations Manager brought on a lot of the drama and that it was the Operations Manager who made it so bad.”
These NLRB found these posts were protected because “it is well established that employee complaints and criticism about a supervisor’s attitude and performance may be protected.” Additionally, the posts were protected because they “arose as part of an employee discussion regarding shared concerns about terms and conditions of employment.”
To me, these cases fit in line with most of the other recent Facebook firing cases reviewed by the NLRB:
- An employee complains on Facebook about something work-related – like compensation, promotion, breaks, or a supervisor;
- The employee uses profane language (but the Board doesn’t care);
- At least one coworker responds with similar comments; and
- At least one coworker comments that the employees should actually do something about the problem.
A recipe for what might be protected concerted activity via Facebook. None of these cases, however, were particularly challenging, in my opinion. None of them, for example, involved comments about working conditions mixed in with comments about customers or patients, or with threats of violence – which involve a more complicated analysis for employers.
We add a caveat, however, that since each case is so fact-specific, it’s tough to tell how much employers should rely on the cases in this report when making their own termination decisions – unless they are strikingly similar.