Friday, November 12, 2010

Is Facebook a Protected Activity? - COTW #15

The NLRB recently issued a Complaint and Notice of Hearing in which an employer stands accused of engaging in unfair labor practices. The Complaint avers that the employee was terminated for "engag[ing] in concerted activities with other employees by criticizing [her] supervisor . . . on her Facebook page." The Complaint alleges that this is a violation of the employee's Section 7 rights under the National Labor Relations Act (NLRA). Section 7 protects employees' right to engage in concerted activities for mutual aid or protection amongst other statutorily defined rights.  If Facebook posts constitute protected activity, this could be huge news for employers and employees alike.

According to CNN, the employee wrote "unflattering and sometimes vulgar terms" about her supervisor, and once wrote, "how the company allows a 17 to be a supervisor." Apparently, 17 is the employer's jargon for psychiatric patients.

The Complaint alleges that the employee violated workplace rules. Specifically, the "Blogging and Internet Posting Policy" which prohibits "making disparaging, discriminatory, or defamatory comments" about superiors and co-workers; and the "Standards of Conduct" which prohibit "Rude or discourteous behavior to a . . . coworker." I'll note that these are common provisions in employee handbooks.

The employer maintains that the Facebook posts are not protected activity. Additionally, the employer claims the case is not even about Facebook and that the employee in question was terminated for "multiple, serious complaints about her behavior," and rude behavior toward patients. 

This case has huge implications for employees' social networking activities and employers' policies. I'll definitely keep an eye on this issue.

As this is a big story, there's tons of coverage out there. Just a few links you may find interesting:
Also, check out this video from CNN (email subscribers, if video does not appear then click here to view online):

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.