We
haven't seen a lot of Facebook firing cases coming out of the National Labor
Relations Board ("NLRB") recently, but on April 3, 2013, the NLRB's
General Counsel released an advice memorandum that discusses one such case. In
that case, the charging party worked as a hostess at a bar/restaurant called
Character's Pub. After new owners took over, the transition did not go well.
Two servers were terminated; another staff member quit; and others were upset
over a new rule that servers were prohibited from discussing the menu with cook
staff and could only discuss menu issues directly with the head chef.
Meanwhile,
the employees had a private group Facebook page where they "talked" about
work. After the new owners took over, complaints on the private page increased.
A few days before the Charging Party was fired, she posted, "I just want
to cry right now. Depressing...no regulars, no staff, no fun!! I miss everyone.
I didn't think they'd f*** it up this badly!!!"
When
the employee got to work a few days later, the owners of the restaurant met her
outside the restaurant. They told her, "We saw the Facebook page,"
and terminated her employment. The employee then brought an unfair labor practice
charge alleging the comments on the private group Facebook page were protected
concerted activity under the National Labor Relations Act (NLRA). The charge
was submitted to the General's Counsel office for advice.
The
General Counsel found that the posts were protected because:
- The employee
complained about the terms and conditions of her work;
- She directed the
complaints to a group of employees; and
- The complaints were "part of their continuing discussion of shared workplace concerns revolving around changes in the employee's terms and conditions of employment caused by the new ownership."
While
perhaps there aren't any particularly new or unusual facts in this case, this
decision confirms that the NLRB is taking a consistent line - when an employee
is terminated for complaining about management or changes in the workplace and
the complaints are made to other employees who respond in some way - the NLRB
will find the social media posts to be protected and the termination unlawful.
The case is also a good reminder that the NLRB is still focused on social media
discipline and discharge cases and that employers need to be careful when
taking action against an employee based on social media posts.
Perhaps
more importantly, while the case doesn't explain how the employer happened to
see the posts, since they were on a private group page, the case serves as
another reminder that making employment decisions based on information on a
private site is extremely risky. There also could have been privacy implications
caused by the employer's viewing of the posts.
networkedlawyers.comCeridian
