This past summer, the National Labor Relations Board (“NLRB”) issued a series of decisions regarding whether employees were unlawfully discharged for making comments about their employment on Facebook. In all of the cases, the NLRB determined that the employees’ comments were not protected under the National Labor Relations Act. In each case, the NLRB found that the employee’s comments were not considered “concerted activity,” a protected activity where employees may sustain an allegation of unlawful discharge if they are fired for talking with other employees seeking to induce some action regarding their employer.
In Martin House, an employee of a residential facility for homeless and mentally ill patients was fired after making comments on Facebook regarding patients. (Case 34-CA-12950) 2011 WL 3223853 (N.L.R.B.G.C. 2011) . While on duty, the employee had a short online “conversation” on Facebook with a friend. In it, the employee said of a patient, “I don’t know if shes laughing at me, with me or at her voices . . . I don’t need to restrain anyone, we have a great rapport . . . .” The employee was fired shortly after the employer was made aware of the comments, with the employer citing reasons of protecting patients from stigma and protecting their privacy. The NLRB said these comments were not “concerted activity” because the employee did not discuss her comments with co-workers. Co-workers also did not respond to her posts. She was “merely communicating . . . about what was happening on her shift.” For these reasons, NLRB determined she was not unlawfully discharged.
In JT’s Porch Saloon & Eatery, Ltd., an employee alleged he was unlawfully discharged for making comments on Facebook complaining about the restaurant and bar’s tipping policy for bartenders. (Case 13-CA-46689) 2011 WL 2960964 (N.L.R.B.G.C. 2011). He had a Facebook conversation with his step-sister, calling customers “rednecks”, stating “he hoped they choked on glass as they drove home drunk,” and complaining that he did “waitresses’ work without tips.” The employee was fired about a week later because of the Facebook posting. The NLRB concluded that these comments were not protected “concerted activity” He did not discuss his comments with other employees and there was no attempt to “initiate group action” about the company’s tipping policy. He was “merely” answering a question from his step-sister.
Finally in Wal-Mart, a customer service employee was fired after posting comments on Facebook about her manager. (Case 17-CA-25030) 2011 WL 3223852 (N.L.R.B.G.C. 2011). He stated, “Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call . . . .” Two employees commented, one asking what happened and another offering encouragement. The employee later went on to complain about the behavior of an assistant manager. The NLRB determined that the employee was not unlawfully discharged; that despite the comments by co-workers, the employee did not engage in protected “concerted activity.” The NLRB characterized the comments as nothing more than an “individual gripe,” and not an attempt to induce action by other employees.
While these cases indicate that employers can fire employees for comments they make on Facebook, these cases also serve as a warning for employers. Although none of these cases found the comments to be “concerted activity,” a finding of such activity could likely lead to a determination that there was an unlawful discharge. If an employee is talking with co-workers about their employer on Facebook, that employer, if it comes upon the comments, needs to be extra careful in analyzing the nature of the comments before making any employment decisions based on those comments.
Jeremy Fetty is a partner in the law firm of Parr Richey Obremskey Frandsen & Patterson with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.
The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.