Beware Of Facebook: Employees Have Rights!
| Posted in Legal on Jun 3, 2011 by |
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I recently read an article which stated that the total number of Facebook users in the United States is approaching 155 million. Given that the population in this country is approximately 310 million, this means that nearly one-half of all Americans have a Facebook account. I guess you can say that the chances are pretty good that many of your employees do too.
Why should you care? Well, Facebook and other social networking websites have literally changed the way people communicate and, in particular, changed the way employees communicate with each other about work. Conversations about work take place all of the time, both inside and outside the office. They are no longer limited to the water cooler and the lunch/break room.
So, what is an employer to do if it learns that one or more of its employees has disparaged the company, criticized a supervisor, or simply complained about work on their Facebook page? Can an employee be disciplined or terminated? The answer, surprisingly enough, is probably not (or at least, not without risk).
Over the last year or so, the National Labor Relations Board (NLRB) has filed multiple complaints against employers who have terminated employees for comments posted on Facebook. Complaints, in fact, have been filed against both union and non-union employers. Many non-union employers are unaware of the National Labor Relations Act (NLRA) or believe that it simply does not apply to them. In fact, however, the law applies whether you are unionized or not. Specifically, the Act prohibits employers from curtailing employees- union and non-union- from engaging in “concerted protected activities” which includes, among other things, discussions about working conditions, pay, and benefits.
Thus, an employer who disciplines or terminates an employee because the employee has posted something unsavory about work on his or her Facebook page may find itself the subject of an NLRB Complaint. Indeed, just ask Hispanics United of Buffalo, a not-for-profit organization in New York that provides social services to low-income clients. On May 9, 2011, the NLRB filed a complaint against it after it terminated five employees who took to Facebook to criticize working conditions, including workload and staffing issues. Or, you can ask American Medical Response, a Connecticut based company which provides emergency medical services. It too was the target of an NLRB complaint after it fired an employee for posting negative comments about her boss on Facebook.
As of the date of this article, I am unaware whether any of the many NLRB-Facebook complaints have been adjudicated. In other words, I do not know if an Administrative Law Judge has agreed that such terminations actually do violate the National Labor Relations Act’s prohibition against curtailing an employee’s right to engage in “protected concerted activities.” Nevertheless, all employers should review and update their workplace policies on technology and Internet use. In light of the recent activity by the NLRB, it is extremely important that such policies are clear while at the same time not overly broad. In addition, management and supervisory staff must be trained and made aware of the NLRB’s position regarding an employee’s permissible use of social media websites.
If you have any questions regarding this article, or any other employment law matter, please feel free to contact me at (314) 588-7000 or rkorn@foxgalvin.com.
Richard Korn is a partner at the law firm of Fox Galvin, LLC, a boutique litigation law firm located in downtown St. Louis. For more information on Richard’s practice, please feel free to visit Fox Galvin’s website at foxgalvin.com. Contact Richard at rkorn@foxgalvin.com or (314)588-7000.
Tags:
Facebook National Labor Relations Board National Labor Relations Act Employment Law Nonprofit
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