The NLRB, through its regional office in Buffalo, New York, issued this month a complaint against an employer in a case involving Facebook postings for possibly violating the National Labor Relations Act (NLRA). This has become a hot issue. Therefore, it’s a good time to review the applicable rules.
This current complaint involved postings on Facebook originating from an employee’s online comment that the employer did not do enough to assist its customers. Apparently, these original comments were cross posted on Facebook by other employees in a possibly harassing manner. The employer fired several of the alleged harassers.
On the other hand, last month the NLRB issued an Advice Memorandum stating that an employer that fired an employer for inappropriate Twitter comments did not violate the NLRA. In this case, the employee was a reporter for a newspaper and the newspaper claimed that the reporter’s Twitter comments were inappropriate and insensitive about crime victims.
Under the NLRA, an employee cannot be fired based upon “protected, concerted activity” that relate to the terms and conditions of employment or seek to involve other employees in issues relating to employment.
In the first case mentioned above, complaints related to working conditions, and were protected. In that case, a claim by the employer of employee harassment was not a valid defense against a violation of the NLRA. However, in the second case, inappropriate remarks about the public do not relate to working conditions and are therefore not protected.