VanAntwerp Attorneys, LLP
Phone: 606-618-0698

Is your social media policy overly broad from an NLRB standpoint?

If your company has a policy that forbids employees from being critical of it on social media, you may be taking a legal risk. Under the National Labor Relations Act, employees have the right to criticize their companies on social media if their criticisms pertain to protected activity.

Consider two situations in which an employee was fired by a company called Butler Medical Transport, LLC. Both employees made negative comments about the company on Facebook, in violation of policy:

In 2012, a former employee posted that he felt his termination was unfair. A current employee responded," "Sorry to hear that but if you want you may think about getting a lawyer and taking them to court...You could contact the labor board too."

In 2013, an employee seemed to be complaining that the ambulance he drove had broken down. "Hey everybody!!!!! IM Fu**** BROKE DOWN IN THE SAME Sh** I WAS BROKE IN LAST WEEK BECAUSE THEY DON'T WANTA BUY NEW SH**!!!! CHA-CHINNNGGGGGG CHINNNG," he wrote.

Both employees were fired, but the National Labor Relations Board (NLRB) found one of the firings improper. Can you guess which one?

Astute observers will realize that the first employee's termination was considered improper. The NLRB found, 1) the employee was engaged in protected concerted activity when he suggested a possible resolution to a wrongful dismissal complaint; and 2) that the Facebook post was intended for the "mutual aid and protection" among employees because the possibly wrongful discharge was of concern to fellow employees. Moreover, the worker had only recommended options to which the former employee was legally entitled.

The second employee's post did not involve protected activity. As a matter of fact, the company looked into whether the worker's ambulance had indeed been out of service that day, and it had not. The employee admitted that he had been talking about his girlfriend's car being broken down. As a result, the NLRB found the post "maliciously false."

Company's social media policy found overly broad

Interestingly, the NLRB struck down Butler Medical Transport's policy. Even though the second employee's firing was found to be justified, the Board ruled that the social media policy was too broad. (Butler had admitted that during the proceedings.)

This was because employees do have the right to engage in protected activity, including concerted action. According to the NLRB, employees have the right to take part in unionizing or concerted activities such as:

  • Forming, attempting to form or joining a union
  • Refusing to do any of these things
  • Engaging in mutual aid or protection regarding the terms and conditions of their employment, including bringing group complaints or seeking to induce group action

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