The NLRB-Facebook Firing Case: Four Things Employers Need To Know

If you read some of the commentary on the recent settlement between the National Labor Relations Board and a Connecticut-based ambulance company, you may have some questions.

Can employees badmouth their bosses freely on Facebook now? Are our social media policies broken? Doesn’t this cover only union employees? Is this a victory for the First Amendment or something else?

While it is problematic to look too closely at this case (since it is a settlement, very little new information has actually been released), there are some things we can take away from this settlement.

Can employees now badmouth bosses on Facebook?

Based on what we’ve seen so far, at least some badmouthing is going to be allowed on social networks going forward. Is that going to give license for employees to say whatever they want? Not exactly.

The NLRB concerns itself with concerted activity among employees. Even if I think that the NLRB was very broad in their interpretation of concerted activity, there are still some limits to what amounts to protected activity. For example, mocking your boss’s bald spot wouldn’t be protected activity at all (and hey, that’s pretty mean even if it is protected).

There may be some things posted on Facebook that employers may be uncomfortable with that are perfectly legal. The question you should be asking yourself isn’t whether it is appropriate for public consumption, but, whether it falls within a broadly defined concerted activity definition.

Are our Social Media policies broken?

That will depend on how strict your policy is. We know that concerted activity can happen both during and outside of work hours. While this particular case deals with a situation outside of work, it doesn’t mean that the lessons couldn’t be applied to an internal social network or the use of social networking in the workplace.

While I believe that you should treat social media like any other communication platform and keep specific policy to the minimum, I wonder if this will scare more companies into banning it completely at work? While I wouldn’t condone that action, I could see why employers might want to mitigate that risk through an outright ban.

The best suggestion right now, if you have an ultra-strict policy, is to make some modest changes to take into account concerted activity. At the very least, the NLRB has indicated that Facebook is one of those places where that can happen.

Doesn’t this only cover union employees?

While this case was definitely helped by the fact that the person was a part of a union, and one of the impetuses for posting to Facebook was a denial of union representation, that doesn’t mean that non-union companies can rest easy.

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Concerted activity protects all employees eligible to organize in a union (even if they aren’t currently in one). After all, one of the biggest reasons people start a union is through a discussion among their peers.

So even if you aren’t among the employers with a union in the house, that doesn’t mean you can ignore this settlement.

Is this a victory for free speech or something else?

As you might have gathered, this case has very little to do with free speech and more to do with employee rights during periods of concerted activity. Even though the definition of concerted activity is broad, it doesn’t mean employees have complete free speech when it comes to postings on social networks.

For example, an employee of a large commercial real estate firm in Portland, Oregon was fired recently for his postings on various news sites. He wasn’t protected because he was posting about political issues, not workplace issues.

If the posting isn’t about the workplace at all, it is likely not protected speech and therefore could still lead to discipline.

Conclusion: proceed with caution

Like many cases impacting the workplace, this case doesn’t give people absolute clarity on how to move forward.

Like everything that comes through, you need to read about the case and understand how it impacts your current policy. At the very least though, it is worth a refresher course on any policies that can possibly be impacted.

Lance Haun is the practice director of strategy and insights for The Starr Conspiracy, where he focuses on researching and writing about work technology. He is also a former editor for ERE Media, broadly covering the world of human resources, recruiting, and sourcing. 
He has been featured as a work expert in publications like the Harvard Business Review, The Wall Street Journal, Fortune, MSNBC, Fast Company, and other HR and business websites.
He's based in his Vancouver, Wash., home office with his wife and adorable daughter. You can reach him by email or find him off-topic on Twitter.