It’s a story as old as Facebook itself (which, admittedly, is not that old). Employee is employed by employer. Employee has a Facebook account. Employee mixes business with pleasure and posts about employment on Facebook. Employer finds out about Facebook post and terminates employee. Nobody is happy and the NLRB gets involved.

Well, it’s happened again in Butler Medical Transport, LLC and Michael Rice and William Lewis Norvell, where two employees of a medical transport company (“Butler”) were fired after posting on Facebook about their employer.

First, on October 10, 2012, William Norvell (“Norvell”), an emergency medical technician, posted on the Facebook page of a co-worker, Chelsea Zalewski (“Zalewski”). Zalewski had taken to Facebook to complain regarding her recent termination from Butler and the status of certain company vehicles. In response to the post, several Butler employees commented, including Norvell, who recommended that Zalewski “think about getting a lawyer and taking them to court” or consider “contact[ing] the labor board too.” As it goes in these cases, Butler learned of the posts and terminated Norvell for using a social media website to discredit Butler, which was prohibited by the Butler handbook. The Facebook posts were the only reason given to Norvell for his termination and he subsequently filed a charge with the NLRB.

A few months later, on January 14, 2013, another Butler employee, Michael Rice (“Rice”), elected to use more stridently worded prose than Norvell when he posted: “Hey everybody!!!!! Im f***in broke down in the same sh** I was broke in last week because they don’t wantna buy new sh**!!!! Cha-Chinnngggggg chinnng-at Sheetz Convenience Store.” Butler learned of the post and terminated Rice for violating company policy because the post, implying that Butler’s company vehicle was broken and Butler refused to repair it, was false. In reaching that conclusion, Butler reviewed maintenance records to confirm that Rice’s company-issued vehicle was not broken down at the time of the post. During a subsequent unemployment hearing, Rice asserted that he was referencing a personal vehicle in the post, and not a Butler company vehicle. Similar to Norvell, Rice filed a charge with the NLRB over the termination.

So there you have it: two separate employees, two separate posts on Facebook, two separate terminations, and only one finding of unlawful conduct.

As you have probably figured out by now, Norvell’s termination was deemed unlawful. Specifically, the ALJ held that Norvell’s post was protected concerted activity within the meaning of the NLRA. In analyzing the posting, the ALJ reviewed the context of the posting and held that Norvell was advising a fellow, yet former, employee to obtain legal representation and contact the labor board. Because Zalewski’s initial post regarding her termination partially involved commentary on Butler’s company vehicles, the matter was of mutual concern to Butler’s employees. The ALJ, thus, found that the activity was protected, regardless of whether Norvell’s post may have adversely impacted Butler’s business or violated a company policy. To that end, the ALJ also held that Butler’s policy, which attempted to restrict employees’ social networking activity, was unlawful because employees could construe the language to prohibit lawful activity under Section 7 of the NLRA.

Rice, on the other hand, was not speaking on a matter of mutual concern or engaging in protected activity when he made his vociferous post. In fact, based on conflicting representations made during an unemployment hearing that his post referenced a personal vehicle, the ALJ determined that Rice’s post was false and malicious, and thus lost any protection that it might have otherwise had under the NLRA.

For employers, the key takeaway is the ALJ’s emphasis on the context surrounding employee Facebook posts that implicate the terms and conditions of employment. Untrue or false statements will certainly lose any protection under the NLRA, but truthful statements may warrant NLRA protection, even if posted through Facebook. An employer contemplating discipline for an employee’s Facebook post must examine, among other things, the employment issues addressed in the post, the audience of the post, and the veracity of the post to determine if the post could be protected conduct.

Additionally, employers should review their policies to see whether any social media restrictions would potentially run afoul of the NLRA for limiting or chilling employees’ Section 7 rights-whether labeled as a formal policy, bullet point list, guidelines, code of conduct, or otherwise. Looking to substance over form, any policy regulating conduct that is distributed by the employer to the employees will be considered a policy, subject to the NLRB’s scrutiny. Social media websites may not command the same decorum or strictures of the workplace, but they still represent a protected arena for employees engaging in certain commentary of mutual concern to fellow employees.

Jason Pill