Many employers have adopted policies establishing guidelines for responsible blogging and use by employees of social networking media sites such as Facebook, MySpace, Twitter and YouTube. These policies typically require that employees make clear that they are not speaking on behalf of their employer, unless specifically authorized to do so; comply with company policies regarding nondisclosure of confidential business information, discrimination, and harassment; and be respectful in their comments about co-workers and customers. Companies commonly reserve the right to discipline, and even terminate the employment of, employees who violate their social media policies. Well-publicized examples employees being fired for irresponsible blogging and use of social media are not hard to find. In May 2010, a North Carolina waitress was fired for posting a profanity-laced comment on her Facebook page calling two customers who left her a $5 tip “cheap”; in the UK last year, a teenager was let go for calling her job “boring”; and in 2008 Virgin Atlantic fired 13 employees over a Facebook chat that the airline said brought the company into disrepute and insulted customers.
However, companies need to be aware that the National Labor Relations Board (“NLRB”), now dominated by three appointed union lawyers, has thrown down in the gauntlet in defense of employee rights to engage in on-line venting. In October 2010, the NLRB filed a complaint against American Medical Response of Connecticut, Inc., claiming that the company unlawfully used an excessively broad social media policy to terminate the employment of a worker who posted negative comments about her supervisor on her publicly accessible Facebook page. A similar complaint was filed by the NLRB in late May 2011 against Knauz BMW, a Chicago area BMW dealership that fired a salesman for complaining on his Facebook page about food and beverages served by his employer at an event to promote a new model BMW. In both cases, the NLRB argued that the employers’ actions interfered with the employees’ right to engage in “concerted, protected activity,” under Section 7 of the National Labor Relations Act (“NLRA”). “Concerted, protected activity” includes the right to communicate with coworkers about the terms and conditions of employment, and applies to employers regardless whether they are union or non-union shops.
Companies should be aware that aggressive enforcement of overbroad blogging and social media use policies could lead to NLRB action, as in the American Medical Response and Knauz BMW cases, and should exercise caution in taking disciplinary action against employees for blogging and social networking activity that touches, even minimally, on workplace subject. In American Medical Response, the fired employee posted on her Facebook page that her supervisor was a “dick” and “a scumbag, as usual.” In Knauz BMW, the salesman posted photos and commentary on his Facebook page critical that only hot dogs and bottled water were offered to customers. In both cases, the NLRB argued that these posts constituted protected complaints about the terms and conditions of employment.
We recommend that employers revise their social media policies to explicitly state that such policies will neither be interpreted nor applied in a manner that interferes with employees’ right to engage in protected, concerted activity under Section 7 of the NLRA. Employers should also exercise caution in taking disciplinary action against employees for blogging and social networking activity that touches, even minimally, upon workplace subjects. In addition the risk of an NLRB suit for violation of Section 7, companies who discipline or fire employees for negative blogging and social networking risk private suits for alleged violation of employee rights. In some states, fired employees can file claims for wrongful termination in violation of public policy, or for violation of state laws enacted to protect the rights of whistleblowers.