In a December 14, 2012 decision by the National Labor Relations Board , the Board majority affirmed an administrative law judge’s conclusion that an employer violated the National Labor Relations Act (the “NLRA”) by terminating five employees for comments and criticisms posted on Facebook.

The decision reinforces the Board’s prior position that social media represents a novel platform for employee communications, but one which maintains the established protections of the workplace.

Acknowledging that “the mode of communicating their workplace concerns [Facebook] might be novel,” the Board explained that the employees’ claims regarding their terminations should be analyzed under the established analytical framework for resolving allegations of improper discharge, which was introduced in the Board’s 1983 ruling in Meyers Industries.

In Meyers, the Board held that discipline or discharge of an employee violates Section 8(a)(1) of the NLRA if the following elements are established: (1) the activity engaged in by the employee was “concerted”; (2) the employer knew of the concerted nature of the activity; (3) the concerted activity was protected by the NLRA; and (4) the discipline or discharge was motivated by the concerted activity.

Applying the Meyers standard that was issued before Mark Zuckerberg was even born, the Board majority found that the employees’ activity on Facebook was protected activity. Specifically, one off-duty employee posted her concerns about the employer’s provision of services and stated her intent to discuss the issue with management.

The four other employees, all of whom were off-duty and using personal computers, posted responses to the comment. The following workday, the five employees were terminated. Ultimately, the Board majority held that the online exchange was a concerted activity, protected by the NLRA, because it was the employees’ initial step toward collective action to address an issue with management.

This significant decision underscores the NLRB’s recent attempts to zealously regulate and police employers’ responses to employees’ to social media usage and employers’ policies regarding social media activity. The decision further demonstrates that social media communications, although transmitted in an electronic forum, will be given the same level of protection as workplace communications, and should be treated as such by employers.

Consequently, employers must be mindful of the social media policies they have in place and the manner in which they discipline any employees for content published through social media websites.

Jason Pill