Legal Daily News Feature
Firings, Freedom of Speech and Facebook By Rebecca E. Neely According to the September 26 thwashingtonpost.com article, ‘’Firings, discipline over Facebook posts lead to surge in legal disputes’’, over 100 complaints have been filed with the National Labor Relations Board in the last year and have created confusion for companies over social media policies.
09/28/11 The National Labor Relations Board (NLRB) is responsible for ‘’conducting elections for labor union representation and’’ for both ‘’investigating and remedying unfair labor practices.’’ As defined at Wikipedia. com, ‘’unfair labor practices’’ cover both ‘’union-related situations’’ and ‘’instances of protected concerted activity.’’ ‘’A five-person board and a General Counsel’’ govern the NLRB. All are appointed by the President with the consent of the Senate. Currently, the board’s acting general counsel is Lafe Solomon. Solomon was quoted as having said in an interview, per the washingtonpost.com article: ‘’Most of the social media policies that we’ve been presented are very, very overbroad. They say you can’t disparage or criticize the company in any way on social media, and that is not true under the law.’’ He further explained that federal law allows employees ‘’to talk with co-workers about their jobs and working conditions without reprisal - whether that conversation takes place around the water cooler or on Facebook or Twitter,’’ per the article. Examples of complaints include a car salesman who was fired after writing on Facebook that the BMW dealership he worked at served cheap food at an event to publicize a high end car. However, as a result of an NLRB enforcement officer
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investigation, it was found the salesman’s comments were protected by law because he ‘’was expressing concerns about the terms and conditions of his job’’, and because he had previously shared these concerns with fellow employees. Another complaint involved ‘’the case of a Wal-Mart employee who’’ wrote on Facebook about managerial ‘’tyranny’’ and used a lewd Spanish word to describe a female manager. Following the posting, the employee was suspended for a day, and barred from seeking a promotion for a year. However, in this case, NLRB attorneys called the postings ‘’an individual gripe’’ versus a means to discuss working ‘’conditions with coworkers.’’ As a result, no action was taken against Wal-Mart. Are the cases different? That may be open to interpretation, and seems to fall into a grey area, thus underscoring the problem. Although employees are protected when they come together to discuss working conditions, companies are rightly concerned about the effect of derogatory remarks when they can be seen by thousands of people online, instantly. As the use of social media only continues to proliferate, the situations involving the use of such platforms as Facebook and Twitter will undoubtedly continue to come under further scrutiny. Other issues of significance are whether current laws, regulations and policies can keep pace with the phenomenon of social media. Indeed, how, when, and what these laws should address will be key. Perhaps the best suggestion for both employees, and employers, is to temper the use of said platforms with both common sense and moderation.
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