Advice Before You Fire Someone Over a Facebook Post (or any social media posting) (last accessed on September 8, 2011)

Mikal E. Belicove writes for Entrepreneur Magazine about the recent National Labor Relations Board (“NLRB”) ruling that reinstated 5 fired employees who disclosed employer information on Facebook.

The Story

The NLRB held that employees who openly participate in Facebook conversation about the terms and conditions of their employment are protected under the Wagner Act, otherwise known as the National Labor Relations Act. The Board considered several cases: In four (4) of the cases involving Facebook, employees were found to have engaged in protected concerted activity. The important word there is “concerted”, which means a colloborative effort, not just one person acting solely, in a common activity. The administrative law judge found that the discussion between coworkers via Facebook was “protected concerted activity” because it involved conversations among coworkers about their terms and conditions of employment and those conversations included their job performance and staffing levels.

The judge ordered the reinstatement of the five (5) employees with back pay and required the organization to post a notice at its facility concerning employee rights under the National Labor Relations Act.

My Perspective

DISCLAIMER: I am NOT commenting on the cases; I have NOT reviewed the case opinions. I am commenting solely on this article.

Below is some wise advice before you try to give someone the pink slip for making comments on a social media site, including but not limited to, Facebook, Twitter or LinkedIn:

1. Mikal’s advice at the end of the article is sage advise: Before you implement ANY employee procedures or handbook, PLEASE speak with an employment attorney. Unfortunately, Kendrick Law Practice ( offers only document drafting, document reviewing and negotiating legal services but is able to provide non-legal business consulting about employee issues. We have a number of employment attorneys we can refer you to so give us a call if you need a referral.

2. Do not take this holding too broadly. If there is a confidentiality clause or non-disclosure provision in your employment agreement, DO NOT THINK social media will allow you to get into a “concerted” conversation or discussion with someone in your social media circle about proprietary or employment issues and it will be protected. Not going to happen. Period. That’s not what this ruling meant. Neither did it mean you could spread known falsehoods about a company or person without repercussions. Defamation, particularly libel, IS and WILL STILL BE an actionable cause of action for spreading falsehoods and misrepresentations on social media sites.

3. Literally, see the “writing on the [Facebook] wall”. While employers’ first impulse may be to get rid of the employee who is commenting or making disparaging remarks about the company, employers should consider throughly examining the remarks that are being made on these sites to see if there is room for improvement within the company. Not only will it save you the torment of deciding if you should or if you can fire someone for their remarks, but the company may actually improve and the employees may be more productive if management listens to the remarks and makes the necessary changes to improve the quality of work life for the employees.

Discussion Question: What are some social media policies that you have successfully implemented (or not) to keep work out of your employees’ online conversations?




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2 responses to “Advice Before You Fire Someone Over a Facebook Post (or any social media posting)

  1. Weyman Johnson

    This decision also reminds employment law practitioners that even where a union is not in the picture, counsel must be careful to consider NLRA issues before giving advice. From the Supreme Court’s holding in N.L.R.B. v. Washington Aluminum Co., 379 U.S. 9 (1962) (nonunion employees who spontaneously walk out because it’s too cold to work outside are protected from discharge) to Jeanette Corp. in 1975 and Martin Luther Memorial Home in 2004, where employers find that certain unqualified rules, such as a ban on discussing salaries, can run afoul of the NLRA, counsel must be wary. The emergence of new communication technologies only provides a new venue for application of these concepts.

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