Facebook Venting That Won't Get You Fired - Fordham Intellectual Property, Media & Entertainment Law Journal
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Facebook Venting That Won’t Get You Fired

Facebook Venting That Won’t Get You Fired

It used to be that complaining about your job or your boss happened around the water cooler, but the social media revolution has completely transformed the way we vent about work.   Websites like Facebook and Twitter seem practically designed for work complaints.  These days, however, a good online reputation is crucial for any business, and thus many employers have drafted policies that seek to prohibit employees from posting about work on social media sites; violations can be grounds for firing.  Increasingly, though, these policies are being struck down by federal regulators.

In a series of recent rulings and advisories, the National Labor Relations Board has applied the National Labor Relations Act to worker communications on social media.  This means that companies cannot fire employees for online speech that constitutes “concerted activity” for “mutual aid” among laborers, such as calls for improving wages, benefits or working conditions.

Take, for example, a ruling by the NLRB this past December in a case involving Hispanics United of Buffalo, an upstate New York social services provider.  An employee posted a message on Facebook, asking fellow workers how they felt about an accusation that was made by another co-worker that they were not working hard enough.  Several colleagues posted angry, sometimes expletive-laden, responses, like, “What the hell, we don’t have a life as is.”  Hispanic United fired the employees, citing the company’s harassment policy of co-workers.  In a 3-to-1 decision, the NLRB sided with the workers who took to Facebook, finding that the Facebook activity was a concerted effort to improve working conditions under the NLRA.

The labor board’s recent rulings are a blow to companies with broad social media policies with vague restrictions against negative commentary.   However, the NLRB rules do not protect employees who are merely venting on social media with no sense of communal labor welfare.  For instance, the NLRB found an Illinois establishment was lawful in firing a bartender after he took to Facebook to describe customers as “rednecks” and wished them harm because he was unhappy about his pay rate.  Labor officials categorized the remarks as personal venting, and not the “concerted activity” of improving wages and working conditions that is protected by federal law.

In light of the NLRB’s rulings, companies need to clarify and tighten their social media policies to ensure that they do not interfere with the right to communicate about issues like working conditions, benefits or wages.  The NLRB has already concluded in a series of reports that several companies have policies that are too broad, which hinder workers’ rights.  Specifically, the labor board found GM’s policy that states that “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline” was unlawful.   The NLRB also rejected Costco’s ban on posting things that “damage the company” or “any person’s reputation,” saying the rules were overly broad.

Corporate rules on social media are not going anywhere, but rather, the NLRB’s rulings will push companies to be more specific and not impose blanket bans.  For instance, the NLRB approved Wal-Mart’s social policy after the retailer revised its ban on “inappropriate postings” to include “discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”  Although the NLRB’s rulings are a win for employees, the issue of workers’ rights and social media are far from resolved, and conflicts about what you can or cannot say will undoubtedly still arise as both employees and management navigate the gray area of social media.

Michelle Lee

Michelle Lee is a second-year law student at Fordham Law and is an IPLJ staff member. She received a B.A. in Health and Societies from the University of Pennsylvania.