An employee posted on Facebook that her manger was a “scumbag” and was terminated for the comment. The termination was unlawful. A Chipotle employee tweeted about his low pay and was fired. The firing was unlawful. An employee posted a status update on Facebook using expletives about her Employer. She was terminated for her comments, but the termination was unlawful.
The primary reason for these unlawful firings is because this type of speech is protected under the National Labor Relations Act. The Act protects employees right to engage in not only union activity, but also protected “concerted activity”. Employees have the right to address work-related issues and share information about pay, benefits, and working conditions with co-workers on Facebook, YouTube, and other social media. But which communications count as “concerted activity” is fact-specific. In theory, “concerted activity” is supposed to be more than just individual griping – it must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to the attention of management. But in practice, it can be hard to tell the difference.
As the internet and social media platforms grow, change and capture new users, a tension will continue to exist between employee rights and employer’s interests. Being aware and knowledgeable will allow employers to make educated decisions when handling employee social media issues and limit potential costly interruptions in the ordinary course of business. Employers should consult with a lawyer before making adverse employment decisions based on an employee’s social media complaints.