The National Labor Relations Board (“NLRB”) continues to move aggressively against unionized and non-unionized employers who discharge employees for Facebook or Twitter postings critical of the employer. Last month, regional directors of the NLRB in Buffalo and Chicago issued complaints asserting that the termination of workers for their social media postings violated their right to engage in protected concerted activity under Section 7 of the National Labor Relations Act. In Hispanics United of Buffalo, Case 03-CA-027872 (May 9, 2011), a non-profit allegedly fired five employees for a series of Facebook postings critical of the employer, including criticism of work load, staffing issues and other working conditions. In Karl Knauz BMW, Case 13-CA-046452 (May 24, 2011), a car dealership allegedly fired a salesman for Facebook postings critical of a promotional event at the dealership, including a criticism that customers were served only hot dogs and bottled water.
By comparison, in April 2011, the NLRB’s general counsel advised a regional director in Arizona not to issue a complaint against a newspaper that discharged a reporter for his comments on Twitter, Facebook and MySpace. In Lee Enterprises, Inc., d/b/a Arizona Daily Star, Case 28-CA-23267 (April 21, 2011), the reporter posted a tweet ridiculing the paper’s copy editors and a series of tasteless comments about Tucson’s murder rate, including: “You stay homicidal, Tucson”; “What?!?!? No overnight homicide? WTF? You’re slacking Tucson”; and “Hope everyone’s having a good Homicide Friday.” He also made a puerile reference to masturbation and referred to a local television station as “Stupid TV people.” The NLRB’s general counsel concluded that the reporter’s tweets were not protected and concerted, because they did not relate to the terms and conditions of his employment and he did not seek to involve other employees in employment-related issues.
As these and other cases demonstrate, drawing the line between protected and unprotected social media postings can be tricky. Employers should consult with labor counsel before taking any adverse action against an employee for social media postings critical of the employer.