We haven’t seen a lot of Facebook firing cases coming out of the National Labor Relations Board (“NLRB”) recently, but on April 3, 2013, the NLRB’s General Counsel released an advice memorandum that discusses one such case.  In that case, the charging party worked as a hostess at a bar/restaurant called Character’s Pub.  After new owners took over, the transition did not go well.  Two servers were terminated; another staff member quit; and others were upset over a new rule that servers were prohibited from discussing the menu with cook staff and could only discuss menu issues directly with the head chef.

Meanwhile, the employees had a private group Facebook page where they “talked” about work.  After the new owners took over, complaints on the private page increased.  A few days before the Charging Party was fired, she posted, “I just want to cry right now.  Depressing … no regulars, no staff, no fun!!  I miss everyone.  I didn’t think they’d f*** it up this badly!!!”

When the employee got to work a few days later, the owners of the restaurant met her outside the restaurant.  They told her, “We saw the Facebook page,” and terminated her employment.  The employee then brought an unfair labor practice charge alleging the comments on the private group Facebook page were protected concerted activity under the National Labor Relations Act (“NLRA”).  The charge was submitted to the General’s Counsel office for advice. 

The General Counsel found that the posts were protected because:

  • The employee complained about the terms and conditions of her work;
  • She directed the complaints to a group of employees; and
  • The complaints were “part of their continuing discussion of shared workplace concerns revolving around changes in the employee’s terms and conditions of employment caused by the new ownership.”

While perhaps there aren’t any particularly new or unusual facts in this case, this decision confirms that the NLRB is taking a consistent line – when an employee is terminated for complaining about management or changes in the workplace and the complaints are made to other employees who respond in some way – the NLRB will find the social media posts to be protected and the termination unlawful.  The case is also a good reminder that the NLRB is still focused on social media discipline and discharge cases and that employers need to be careful when taking action against an employee based on social media posts. 

Perhaps more importantly, while the case doesn’t explain how the employer happened to see the posts, since they were on a private group page, the case serves as another reminder that making employment decisions based on information on a private site is extremely risky.  There also could have been privacy implications caused by the employer’s viewing of the posts.

Have you disciplined or discharged an employee due to social media posts?  If so, what steps did you take to analyze whether the posts were protected or to determine whether you should have had access to the posts in the first place?  As always, we would love to hear from you.