Does the NLRB Facebook action mean I need to change my social media policies?
When discussing social media and the law issues, I often say that you can fire an at will employee for almost anything, including badmouthing the company on social media. Then, the National Labor Relations Board took an action for an employee who was fired, at least in part, for posting negative comments on Facebook.
Despite the hype about the action, my advice is the same. There are a couple of pertinent facts that need to be pointed out. The employee was a member of a union. While not strictly limited to unions, the NLRB only has jurisdiction over unions or employees engaging in organizational activities. The employee in that action was terminated for a variety of reasons and not just for her Facebook posting. The NLRB also cited the failure to allow an employee representative in an investigative interview as one basis (and likely better one) for their claim.
A lot of the attention seems to be focused on the social media policy of the company. According to the NLRB press release:
An NLRB investigation found that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity. I could not find the actual policy online. I recommend similar language that the company discourages (rather than prohibits) such behavior and reserves the right to take action should the employee engage in such behavior. Rather than giving the company the right to do something it already has a right to do, this part of the policy helps establish and manage the expectations between the employees and the company.
Notwithstanding the complication of the labor law issues involved, the general rule applies. If you are reacting to something done on social media, would you have a similar reaction if you overheard the conversation at a cocktail party? You would not have a policy that strictly prohibits employees from talking about the company without company permission at a cocktail party. Likewise, if someone was engaged in protected speech (organizing activities, whistleblowing, first amendment for government employees) at a cocktail party, you would face the same issues and think twice about taking an adverse employment action.
On the other hand, if an employee is badmouthing the company or revealing company secrets at the same cocktail party. By all means, take the necessary action. Facebook, after all, is nothing more than a huge cocktail party, but with a written record.