Employers must be careful before they fire or discipline an employee because of his or her comments on social media. As a general rule, if multiple employees are using social media to discuss the terms and conditions of their employment, or one employee is using social media to speak on behalf of other employees about the terms and conditions of employment, that conduct is likely protected as “concerted activity” under the NLRA. In fact, recent NLRA decisions have shown that a social media posting by one employee about the terms and conditions of employment which is “liked” or “favorited” by other employees is likely protected as concerted activity.
Despite these constraints certain types of social media posts provide a legitimate basis for termination. These posts include the following:
- Insubordination – Two newly hired employees of a teen center used Facebook to discuss how they would ignore the employer’s rules and allow the teens to “graffiti the walls”, among other things. The NLRB held these threats of insubordination justified termination in its recent decision in Richmond District Neighborhood Center.
- Threats of Violence – Credible threats of violence or comments which lead to genuine safety concerns in the workplace (e.g. “I’m bringing a bomb to work”) will likely not be protected activity.
- Individual Gripes – If the employees are just airing individual gripes or venting their personal frustration and not trying to address an overall workplace problem, the behavior will likely not be protected as concerted activity. A prime example is the NLRB decision in Skinsmart Dermatology, where the terminated employee posted in a Facebook group message that the employer was “full of s—“ and wrote “FIRE ME . . . make my day.
Before an employer takes any action based on a social media post it needs to determine what is being said and how many employees are joining in the discussion. That information is the key to determining what action, if any, should be taken.