May employers lawfully fire employees for posting negative comments about their job on social media sites? Like most situations in employment law, the answer is “It depends.” The National Labor Relations Board released a report in January describing the social media cases it reviewed and ruled on in the past year that should help employers understand what “it depends” upon.
Mostly, it depends upon why the negative comments were posted. Section 7 of the National Labor Relations Act allows for employees to discuss their wages and other terms and conditions of employment with co-workers and non-employees without fear of reprisal. However, there are some parameters to this discussion. Employees must be engaged in what the NLRB calls “concerted activity” in order for their comments to be protected by the government. Activity is concerted when an employee acts “with or on the authority of other employees and not solely by and on behalf of the employee himself.” Concerted activity “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action.” The NLRB also considers concerted activity to include employees’ discussions of mutual concern about the terms and conditions of their employment, even when the discussion does not include a plan of action. And, in a variety of circumstances, the NLRB considers these discussions to be concerted activity even when “in its inception it involves only a speaker and a listener.”
For example, the NLRB ruled that an employee was lawfully fired after she posted two comments about her employer on Facebook. According to the NLRB report, the employee had been reprimanded by her supervisor in front of her regional manager for not performing a task that she said she had never been told to perform. Soon after, the employee posted a comment that consisted of a curse word and the name of the employer’s store. Four people, including a co-worker, “liked” the post, and two others commented on the post. A little while later, the employee posted another comment, saying the employer did not appreciate its employees. Several of the employee’s friends and relatives commented on this second post; however, none of her co-workers did. In the following days, the employee told one or two co-workers and a supervisor about the incident that led to the posts. These individuals were sympathetic, but no one indicated that they should take any action as a group. The store manager and human resources manager asked the employee to explain her Facebook postings, and then fired her for making them.
According to the NLRB, this employee’s termination was lawful because her Facebook postings about her employer:
• were merely an expression of an individual gripe;
• the employee had no particular audience in mind when she made her first post;
• the post contained no language suggesting that she sought to initiate or induce coworkers to engage in group action; and,
• the post did not grow out of a prior discussion about the terms and conditions of employment with her co-workers.
In another case, the NLRB ruled that an employee’s termination was unlawful because the employee’s postings were considered to be concerted activity. In this situation, the employee was told she was going to be transferred to another division within the company. The employee felt that the transfer would have a negative impact on her ability to earn bonuses, and she posted a message on her Facebook page using curse words and stating that her employer had “messed up and that she was done with being a good employee.” Co-workers and former employees who were Facebook friends with her posted supportive comments on her page. Two co-workers said they were right behind her and were also angry. Several former employees posted, including one who said that only bad behavior gets rewarded and that the employer “would rather pay the $9 an hour people and get rid of higher paid, smarter people.” The employee responded by saying that “the employer could keep the $9 an hour people who would get the employer sued.” Another former employee suggested a class action lawsuit, stating that “there were enough smart people to get them sued.” When the employee returned to work, her employer showed her a copy of her Facebook page postings and then fired her for making them.
The NLRB ruled that this employer unlawfully terminated the employee “in retaliation for her protected future concerted activity.” According to the agency, “(the employee’s) initial Facebook statement, and the discussion it generated, clearly involved complaints about working conditions and the Employer’s treatment of its employees and clearly fell within the Board’s definition of concerted activity, which encompasses employee initiation of group action through the discussion of complaints with fellow employees.”
In yet another case, the NLRB ruled that two employees were unlawfully terminated and two employees were unlawfully disciplined for their postings regarding a co-worker who was promoted and about mismanagement. Even though the employees did not propose any action against the employer, the NLRB concluded that “the employees were engaged in protected concerted activity when they posted comments on Facebook discussing their shared concerns about terms and conditions of employment.”
So, employees may be fired for their negative comments about their jobs 1) if those comments are not intended to incite action against the employer, 2) if those comments don’t inspire others to incite action against the employer, and 3) if those comments aren’t about the terms and conditions of their employment. Probably best to consult with your employment attorney before firing employees for their comments on social media sites.