Your Social Media Policies May Violate the NLRA

Shortly thereafter, another employee told the administrative assistant that he had just been fired. The administrative assistant told the company president that she believed the termination was unfair, and she began to cry in front of him. She then went to a restroom and posted a message on Facebook using her cell phone that indicated that she was very upset and she could not believe that employees were losing their jobs because they asked management for help. When she returned to her work area, the company president asked to meet with her and told her that she was getting upset over something that was none of her business and management did not like that she shared her opinion with other employees. Later that day, during her lunch break, the administrative assistant posted a series of comments on Facebook from her cell phone that stated that it was a very bad day, one of her friends was fired for requesting help, and she had been scolded for caring about the situation. That same day, the company president terminated her employment because of her Facebook posts and because, although she was coached on not getting involved with the problems of other employees, she had continued to voice her opinion on Facebook.

Upon review, the National Labor Relations Board (Board) found that, under the National Labor Relations Act (NLRA), the administrative assistant was unlawfully discharged for her Facebook posts. Specifically, the Board noted that “employees' discussion of shared concerns about terms and conditions of employment, even when in its inception [it] involves only a speaker and a listener ' is an indispensable preliminary step to employee self-organization.” Moreover, it is unlawful for an employer to terminate an employee to prevent future employee discussions of terms and conditions of employment. Ultimately, the Board concluded that the administrative assistant was terminated for her protected concerted activity of engaging in discussions about working conditions with her coworkers and “as a pre-emptive strike” based on the employer's fear of what those discussions might lead to.