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Recent NLRB Decisions Highlight Conflicts Between Social Media and Employer Rights

Clashes between employer rights and the social media activities of employees seem to be on the rise. Decisions recently handed down by the National Labor Relations Board, or NLRB, sanctioned employers who disciplined employees for their social media activities. The NLRB contends that employers in each instance violated provisions of the National Labor Relations Act.

Social%20Media%2037877338-001.jpgIn one case, employees of a domestic abuse shelter were fired in the wake of a series of Facebook posts. The posts were made in response to the news that another coworker intended to take complaints about the substandard performance of employees to a supervisor. The NLRB found that the posts constituted a concerted activity that is protected under the NLRA. Essentially, board members felt that the employees were engaging in an act of mutual aid with regard to the conditions of their employment. The Facebook posts were an attempt to mount a defense against the allegations of the employee who intended to make a complaint.

In another matter, retail store employees experienced ongoing safety concerns that their employer failed to address. The store’s location was in a questionable neighborhood. Employees had expressed concerns about the late closing hour and the unsafe neighborhood. They asked the owner to institute earlier closing times, a request that was denied. Employees took to Facebook where they aired their grievances and criticisms of their manager. In response, the employees were fired for insubordination. However, the NLRB found that this situation also constituted a protected concerted activity. The board cited employee posts stating that they intended to consult an employee rights book to determine whether or not their employer was violating California labor laws. Accordingly, the board determined that the Facebook posts were a concerted activity aimed at protecting employees and not a conspiracy to goad the employer into firing them as the store owner had alleged.

As social media permeates more of the interactions between employees, it seems clear that new legal territory will continue to be covered. When confronted with social media posts by employees, it seems advisable for employers to tread carefully and/or seek legal counsel before taking disciplinary action.