Disciplining Employees For Facebook Comments

Early in 2011, there was deep concern in the employer community because the National Labor Relations Board issued a complaint against an employer who disciplined an employee for highly derogatory comments she made about a supervisor on her Facebook page. Questions about whether an employer had any right to respond to such comments without violating the National Labor Relations Act were rampant. But three recent memos from the NLRB's Office of General Counsel show that little has changed from the pre-Facebook analysis of the concept of "protected concerted activity."

The NLRB analyses referred to are NLRB advice memos, which are prepared by the Office of the General Counsel (GC), a division within the NLRB, to respond to requests for advice from various NLRB regions across the country about the proper response to some specific fact pattern under the act. In answering these requests, the general counsel considers the facts of the specific question posed and analyzes board precedent relating to the situation.

The GC then reaches a conclusion whether the particular fact pattern violates the act or not. If the fact pattern does not violate the act, the Office of General Counsel indicates the unfair labor practice charge should be dismissed. If it finds a violation, it will direct the region to issue a complaint if the matter is not settled in accordance with its analysis of the law.

All three advice memos were issued in July 2011, analyzing different scenarios in which employees had been disciplined for various postings on social media. In all three cases, the employers' discipline or termination decisions were found not to violate the NLRA.

The lesson to be taken from these advice memos is that disciplining employees for comments they make in social media is neither prohibited, nor is it without risk. Any decision to discipline or terminate employees for social media postings should be carefully weighed and reviewed with your labor counsel before implementation. It should be some comfort to know that, based on a careful reading of the most recent advice memos, the rules for determining when activity is protected have not changed. Purely individual gripes aired through social media are no more protected now than they were before Facebook became the rage.

This article appeared on September 15, 2011 on Employment Law360.