You Can’t Be Fired for Discussing Your Job on Facebook
Employers can punish or fire employees for doing a lot of things, but they can’t fire you for talking about working conditions at your job on Facebook.
The National Labor Relations Board on Dec. 14 said Hispanics United of Buffalo, Inc., a New York non-profit social services company, violated the National Labor Relations Act (NLRA) by firing a group of employees for posting on Facebook about a co-worker who had accused them of not doing their jobs.
Facebook Comment War
Two employees of Hispanics United argued (via text messages) over the penchant of one of them for criticizing her fellow employees for not doing their jobs, according to the NLRB’s opinion.
The other employee then posted a message on Facebook from her own home computer, asking her fellow co-workers how they felt about being accused of not doing enough for their clients, who are typically victims of domestic abuse. Four co-workers responded with posts objecting to the criticism.
After the employee who’d allegedly criticized the others reported the situation to her manager, who asked for printouts of the Facebook comments, Hispanics United of Buffalo fired all five of the posting employees, citing its zero-tolerance harassment policy.
A Pattern Emerges
The NLRB has repeatedly said that the NLRA’s Section 7, which protects employees’ rights to officially organize as well as to work together for their mutual aid and protection, clearly applies when they’re using a new form of communication to do it. It doesn’t matter if the employees are unionized or not; Section 7 protects most employees.
“Hispanics United of Buffalo is the third opinion from the NLRB since September 2012 concerning application of traditional labor laws to employer regulation of employee use of social media,” wrote Adam Forman and David King, lawyers with Miller Canfield in Detroit, in a recent blog post.
“Social media has arguably created new issues because of its widespread use, pervasiveness and the ability for anyone to access content or communications twenty-four hours a day,” Forman tells Lawyers.com.
“According to the Board, by stating concerns about the workplace and soliciting co-workers’ views, the employees were taking the first step towards taking group action to defend themselves against their co-worker’s accusation that they were not doing enough at work,” Forman says. “Where an employee’s social media communications are about wages, hours or working conditions and have the clear ‘mutual aid’ objective, the communications are protected.”
Policies Must Respect Rights
Although the issues are new, the NLRB is consistently siding with employees when it comes to both discharge cases – like this one – and social media policies in general.
For instance, an employer’s policy – such as a harassment policy – can violate Section 7 even if it’s not applied adversely to an employee, Forman explains. “The mere fact that an employer has implemented an overbroad policy could subject it to an unfair labor practice charge.”
The harassment policy in this case didn’t even apply, said the NRLB, because the comments made on Facebook were clearly not bullying or harassment, which would typically involve inappropriate comments or actions based on race, sex, age, or disability, for instance.
But even if the comments had qualified as harassment, they would still be protected. Forman says the NLRB pointed out that even a legitimate managerial concern about harassment wouldn’t justify a policy that discourages employees from freely exercising their right to discuss their working conditions.