Facebook Firings and Twitter Terminations: the National Labor Relations Act as a Limit on Retaliatory Discharge

• Jurisdiction: United States,Federal
• Publication year: 2012
• Citation: Vol. 8 No. 1

Washington Journal of Law, Technology and Arts Volume 8, Issue 1 Summer 2012

Facebook Firings and Twitter Terminations: The National Labor Relations Act as a Limit on Retaliatory Discharge

Bryan Russell (fn*)© Bryan Russell

Abstract

In every state except Montana, at-will employment is the default rule, leaving employers free to discharge employees for their use of social media. The National Labor Relations Act's (NLRA) protection of collective action, however, is emerging as a substantial limitation to at-will terminations. In Hispanics United of Buffalo, the National Labor Relations Board concluded that Facebook posts critical of the non-profit employer were protected as collective action and that the employer's retaliatory termination of five employees violated Section 8 of the NLRA. To be protected as collective action under the NLRA, an employee's use of social media must be "concerted," somehow involving other coworkers, and for the purpose of mutual aid. The employee may lose this protection if her words or conduct are opprobrious, insubordinate, or disloyal as to disrupt the work environment. Furthermore, an employer remains free to terminate the employee for other legitimate reasons unrelated to collective action. Finally, an employer may not distribute or enforce a social media policy which chills or potentially chills collective action.

Table of Contents

Introduction .................................................................................... 30

I. The Black Letter Law: Protections for Collective Action Under the National Labor Relations Act ................................. 31

II. Examples of Discharges Prohibited by the NLRA .................. 33

A.Prospective Collective Action: Facebook Discussion of Employment Terms and Conditions .................................. 34

B.Outgrowth of Collective Action: Facebook Criticisms of Employer's Event ............................................................... 35

III.Examples of Unprotected Employee Conduct ......................... 36

A.Employee's Activity Was Neither Concerted nor for Mutual Aid ......................................................................... 36

B.Mere Reference to Terms and Conditions of Employment is Not Concerted Action ............................... 37

C."Individual Gripes, Not Concerted Activity" .................... 37

IV.Social Media Policies That Do Not Chill Section 7 Activities .................................................................................. 38

A.Social Media Policy Too Restrictive ................................. 39

B.Heated Language Still Protected as Concerted Action ...... 40

C.Violation of Employer's Code of Conduct ........................ 40

Conclusion ..................................................................................... 41

Practice Pointers ............................................................................. 41

Introduction

Social media permeates the American workplace. Access to social networks has expanded through the use of cell phones, personal computers, netbooks, work stations, and every device in between. Employees use these platforms to communicate with their coworkers, manage projects, send data, organize presentations, and accomplish tasks related to their employment. Employees also use these platforms to harass, complain, and slander their employer, potentially threatening a company's good will, culture, reputation, and bottom line.

Unsurprisingly, harassment, complaining, and slander can serve as a basis for termination. Unless otherwise negotiated, at-will employment is the default rule, and employees may be terminated for their use of social media. However, if an employee's use of social media constitutes collective action under the National Labor Relations Act (NLRA), she may be protected from termination.

The National Labor Relations Board (NLRB) has applied existing legal concepts to emerging issues concerning social media use. In analyzing whether an employee's use of social media is protected, the NLRB still determines whether there is concerted activity and whether an employee is fired in violation of the NLRA. Generally, "[t]he legal principle that insubordination, disobedience or disloyalty is adequate cause for discharge is plain enough."(fn1) In extending its traditional protections for collective action to social media, the NLRB has looked to established legal principles and case law. As described in the 1953 case NLRB v. Local Union No. 1229, IBEW, "The difficulty arises in determining whether, in fact, the discharges are made because of such a separable cause or because of some other concerted activities engaged in for the purpose of collective bargaining or other mutual aid or protection which may not be adequate cause for discharge."(fn2) With social media, whether an employee was terminated for collective action or some other independent reason remains a nuanced determination of fact.

This Article will first outline, in Section I, the controlling law for establishing collective action and determining whether protection has been lost. Section II will enumerate and analyze cases in which the employees' conduct was deemed concerted activity. Section III will examine cases where the employees' actions fell outside the scope of the NLRA's protection. Section IV discusses how employers can use precedent to create a viable social media policy. The Article concludes with practice pointers for both employers and employees.

I. The Black Letter Law: Protections for Collective Action Under the National Labor Relations Act

Because the NLRA's statutory language does not address use of social media, the NLRB has applied existing case law...