Another Facebook Complaint

In the Register Guard decision, which came out during the latter part of the Bush Board, dissenting member Liebman accused the NLRB of being the "Rip Van Winkle" of administrative agencies.  At the time, and in the context of that decision (which held that employees could not use employer email systems for Section 7 of the NLRA purposes) that was certainly true.  Recently, however, the NLRB has been in the forefront of protecting employees using social media for concerted, protected activities.

Under the NLRA, employees are permitted to engage in "protected concerted activities" for their mutual aid and support.  So, for example, it would be unlawful for an employer to fire or discipline employees who gathered around the water cooler and complained about their working conditions.  Or, if employees criticized their supervisor for the way he treated them, the employer would not be permitted to fire the employees.

In a series of cases, the NLRB has simply taken this rule and extended it to social media sites, like Facebook and Twitter.  Last  year the Board issued a complaint against American Medical Response for maintaining a rule that infringed on employees' rights to communicate on FB about workplace complaints, and for firing a worker who criticized his supervisor on FB.  The case eventually settled.

In the past couple of weeks the Board has issued complaints in two other FB cases.  In one, an employee at a BMW dealership was fired after he posted a complaint on his FB page about the quality of food and beverages at a dealership event.  The employee grumbled that only having hot dogs and water at the event could cut into their commissions.  Seems to me that serving hot dogs to BMW customers is probably insulting, even in Chicago, but nonetheless, the Board agreed with the employee that he was engaged in protected activity.  In another case, a Buffalo non-profit fired several employees after they complained about working conditions on their Facebook pages.  The Board has issues a Complaint in the case alleging that the discharges were unlawful.

Predictably, employer groups and management lawyers are in an uproar, claiming that this is an activist Board squashing employer rights.  But really, the issue here is employers overreaching and dicatating to employees what they can and can't do on their own time.  Plus, all the Board is doing is extending what is already the law into situations that obviously did not exist when the NLRA was enacted.  An employer can't fire an employee who sits at a bar and tells his coworkers how much the boss sucks.  So why should an employer be allowed to do that to an employee who does the same thing on FB?

Moreover, employer concerns that employees will now be able to "disparage" their employers are unfounded.  In a recent Advice Memorandum, the Board concluded that an employee was lawfully fired for posting inapproriate tweets on his Twitter account.  According to the Memo, the tweets were not protected because they did not involve terms and conditions of employment, and did not involve other employees.  Instead, the employee was simply venting and posting tweets.

Rip Van Winkle has finally awakened from his slumber.  Perhaps I'll post this on my FB page now.