When can a company discipline or terminate an employee for Facebook postings? This has been the question for several months, since at least two regional directors of the National Labor Relations Board issued complaints alleging that terminations for Facebook postings interfered with employee rights to discuss their wages, hours and working conditions. Many commentators decried the regional directors’ decisions as interference with the rights of companies, but we noted that regional directors do not make national labor policy and businesses had to wait for the Acting General Counsel to issue an actual decision or the Board, itself, to decide a case after a trial.  

On July 19, 2011, the Acting General Counsel issued two rulings through the General Counsel’s Division of Advice. In both cases, the local regional directors submitted cases for advice and the Division of Advice ordered the local regional directors to dismiss the cases. The key to both decisions was whether the employee involved was engaged in “protected, concerted activity,” which is activity protected by the National Labor Relations Act.  

In these two cases, the employees did not engage in concerted activity. In the first case, an employee of a non-profit residential facility for homeless people posted several comments on her Facebook page about the residents. In one post, the employee and the employee’s friend – who was not a co-worker – spoke about a resident and whether the resident should be physically restrained. The employee was not a Facebook friend with any of her co-workers and none of the co-workers responded to the employee’s postings. However, a former resident saw the post, complained to the company and the company terminated the employee because the employee should not have been communicating about the resident. In the second case, a customer service employee at a Wal-Mart store complained about a new assistant manager, writing “Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!” Two co-workers responded and the employee responded to them, stating that, “if it don’t change walmart can kiss my royal white ass!” The store manager disciplined the employee because the employee had “put some real bad things on Facebook about Wal-Mart and the assistant manager.”  

The Division of Advice ordered both cases dismissed, defining concerted activity as activity that “seeks to initiate, induce, or prepare for group action” or when the employee brings “truly group complaints to the attention of management.” In the first case, the employee did not discuss her Facebook postings with coworkers and no co-workers responded. The employee was merely writing individual comments about her work. Similarly, in the Wal-Mart case, the comments expressed individual gripes and not group action, did not seek to induce group activity and were not an expression of previous group activity.  

Therefore, before deciding whether to discipline employees for using social media to discuss or complain about working conditions, companies need to conduct a due diligence analysis. A company must determine whether the social media postings are both concerted and protected. Concerted activity is activity of a group and may involve one employee speaking for a group, inducing a group to act and responding to group activity. Interestingly, the Division of Advice did not discuss whether Wal-Mart’s employee engaged in protected activity. In this commentator’s view, the employee’s use of profanity in the Facebook posting was not protected speech, even if the employee engaged in concerted activity.