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Disciplining Employees for Social Media Activity

Can you fire an employee for criticizing you on Facebook?
What about for “liking” a post on Facebook?
In both instances, the National Labor Relations Board (“NLRB”) has said no.
In August, the NLRB ruled that a Connecticut sports bar violated the law when it terminated two employees for their Facebook activities.  The first employee criticized the bar’s owner for incorrectly filling out tax forms, leaving the employee to pay more state income taxes than expected.  That employee later referred to the bar owner as a “shady little man,” while another in the string of posts called him an expletive.  The second employee “liked” the first employee’s Facebook post.
The NLRB determined that the employees’ online activity fell within Section 7 of the National Labor Relations Act (the “Act”), which protects employees’ right to engage in “concerted activities” for “mutual aid or protection.”  The NLRB did not agree with the employer that these activities rose to the level of disloyalty and, thus, lost the protection of the Act.  The NLRB also did not find that the first employee’s comment was defamatory.
Accordingly, the NLRB determined that the employer violated the law for (1) terminating the two employees; (2) threatening to discharge employees for their Facebook activity; and, (3) interrogating employees about their Facebook activity.
The NLRB also determined that the sports bar’s “Internet/Blogging” policy violated the law.  That policy informed employees that they could be subject to disciplinary action, up to and including termination, for “engaging in inappropriate discussions about the company” online, through e-mail, via text message, or by other forms of communication.  The NLRB found that the term “inappropriate discussions” was “sufficiently imprecise” that employees might think that it encompassed those discussions and interactions that would be protected under Section 7, mentioned above.
This decision sends a strong message to employers to:
1.    Be careful when taking any action against employees for their social media or online activity; and,
2.    Make sure that any internet or social media policies do not infringe on employees' rights under the National Labor Relations Act.
If you have questions about disciplining an employee for his or her social media or online activity or you need assistance in crafting an effective internet/social media policy, contact a member of MacDonald Illig’s Emerging Technologies or Labor and Employment Practice Groups.
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