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Practical Suggestions for Dealing with Issues Regarding Social Media, the ADA and Independent Contractors – Part III

Scenario #3: Social media

Question: We have an employee who posted that he hated the company he works for on his Facebook page. (The comment also included profanity.) Can we take corrective action against him?

Answer: It depends on the context of the posting.  The National Labor Relations Act (“NLRA”) protects employees who engage in concerted action regarding wages, hours, terms and conditions of work.  Does the statement posted by this employee rise to that level?  If this is a stand-alone statement with no dialogue with other employees, it is unlikely to be protected by the NLRA.  If it is part of a discourse with other employees (for example, if other employees commented on the post, or if the post was a response to another employee’s post), then it would be more likely to be protected – especially if the conversation included discussion of wages, hours, terms and conditions of work.  In addition, the greater the union involvement in the business or industry, the greater the likelihood of an NLRB charge.  Does the employee identify the employer he hates, either in his post, or elsewhere on his Facebook page?  If not, there is little risk of harm to the employer.

The National Labor Relations Board (“NLRB”), which is tasked with enforcing the NLRA, has been very active in recent years against employers that discipline employees due to the employees’ posts on Facebook and other social media.  With more and more news coverage of the NLRB’s actions in this area, employees are learning that this agency that may offer them protection if they pick up the phone and file a charge.  The rules and guidelines are unclear, and it will take a few years to sort all of this out.  In the meantime, no employer wants to be the “test” case.  In short, if an employer is faced with this situation, it is best to get legal advice before acting.