For employers who missed the National Labor Relations Board (“NLRB”) action last year against the Connecticut ambulance company that fired an employee for remarks she posted on Facebook about her supervisor, the NLRB has initiated another complaint against another employer, Hispanics United of Buffalo, a nonprofit, for similar grounds.
In a press release about its latest complaint, the NLRB explained:
Five employees were fired by the company after posting comments on Facebook about work load and staffing issues. The company, in its defense, contends that the five employees were fired because their online comments constituted harassment of another employee who had also posted a Facebook comment.
Unless the case is settled, the NLRB, an independent federal agency vested by Congress with the authority to safeguard employees’ rights to organize, will hold a hearing on the matter on June 22, 2011. The case, however, is likely to settle and serve as another warning to employers that employees have a broad right to discuss conditions of their employment with coworkers on the social network of their choice: as the NLRB has made amply clear, it is protected speech.
Employers who have not revised their social media policies to make it clear that any restrictions stated within their guidelines in no way limit an employee’s right to discuss “the terms and conditions of employment” with coworkers are putting themselves at risk of action by the NLRB or setting themselves up for failure in the event that a dispute arises with an employee concerning their social network comments. Even where other grounds for employee disciplinary action may exist, they are likely to be given little weight if a violation of an employee's right to "concerted activity" is found.