The question of whether or not an employee’s Facebook posts are protected speech recently came into play with two termination proceedings brought before the National Labor Relations Board. Although both employees made Facebook posts and were subsequently fired as a result of those posts, the presiding Administrative Law Judge reached two very different conclusions.
In the first instance, emergency medical technician William Norvell was working for Butler Medical Transport. While off duty and using a personal computer in his home, Norvell logged in to his Facebook account only to read a post from a fellow employee that stated she had been terminated. The terminated employee went on to write that she felt the firing stemmed from an incident during which she had complained to a patient about the state of repair of the ambulance in which they were riding. Other Butler employees weighed in on the subject, with Norvell commenting that the former employee might consider “getting a lawyer and taking them to court.” Later, Norvell also suggested that the ousted employee could contact the labor board.
Management at Butler obtained hard copies of these Facebook posts, using them ultimately to terminate Norvell. At the time of his firing, Norvell was told his posts were in violation of the company’s work rules. This bullet point list included an entry that forbade employees from harming Butler’s image in a public manner, such as through social media posts.
The Administrative Law Judge found that the firing was illegal and that Norvell’s postings fell under the category of protected concerted activity. Because the posts were not reckless or maliciously false, Butler could not legally terminate Norvell for writing them. Instead, he had been discussing a matter that concerned all Butler employees, an activity protected under the NLRA.
In our next post, read about another Butler employee who received a very different outcome from the judge after his “Facebook firing”.