Thursday, May 2, 2013

NLRB Issues Facebook Firing Decision

The NLRB recently issued a decision and order in a Facebook firing case: Design Technology Group, LLC d/b/a Betty Page Clothing and Vanessa Morris (download .pdf).

Let's cut straight to the posts:
Holli Thomas needs a new job. I’m physically and mentally sickened.
Vanessa Morris It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime we try to solve conflicts NOTHING GETS DONE!!
Holli Thomas bettie page would roll over in her grave.
Vanessa Morris She already is girl!
Holli Thomas 800 miles away yet she’s still continues our lives miserable. Phenomenal!
Vanessa Morris And no one’s doing anything about it! Big surprise!
Brittany [Johnson] “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.
Vanessa Morris hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) see you tomorrow!

Then, the employer fired them.

We know from previous advice memos and decisions that the NLRB is on a social media kick. Generally, protected concerted activity includes multiple employees interacting on social media to address terms and conditions of employment.

That's pretty clearly what happened here, right? Also, the employees had approached management earlier to address concerns about safety and the store closing later than the other stores in that neighborhood. It's tough to lay down bright line rules . . . but if the employees are discussing "Worker's Rights" books and lawyers and "labor law" . . . it's probably going to be protected activity.

How does the NLRB see it?
Thomas and Morris were engaged in protected concerted activity when they presented the concerns of the employees about working late in an unsafe neighborhood to their supervisor and to the Respondent’s owner, and . . . their Facebook postings were a continuation of that effort. But we also find that the Facebook postings would have constituted protected concerted activity in and of themselves.
I suspect social media will create a ton of tough cases regarding protected concerted activity . . . realistically, I don't think this was one of them.