The Office of the General Counsel for the NLRB has recently updated its memo summarizing recent social media decisions. The memo provides a reference for employers regarding the limitations on disciplining or terminating employees based on comments they make on FaceBook and other social media sites.
The first case summary in the memo is telling. The Board held that a collections agency violated the National Labor Relations Act when it terminated an employee for an expletive-filled FaceBook rant disparaging the company and its decisions. The Board reasoned that the termination was unlawful, along with the company’s policy, which prohibited:
“[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”
The Board noted that the company’s written policy did not provide an exception for engaging in Section 7 rights (the rights of employees to engage in protected, concerted activity).
Of course, it remains to be seen how courts would regard a similar set of facts. Nonetheless, the memo serves as yet another reminder of the Board’s take: An employee may have a federally-protected right to badmouth her employer. Here, a key factor was that several of the employee’s co-worker FaceBook friends joined in the rant. Hence, the exchange amounted to concerted activity according to the Board.