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November 12, 2010

NLRB Charges Employer for Illegal Termination of Employee for Facebook Comments

On October 27, 2010, the National Labor Relations Board (“Board”) filed an unfair labor practice complaint against an employer that terminated an employee in part because she violated the employer’s social networking policy by posting critical comments regarding her supervisor on Facebook.  The Board alleges that the employee’s Facebook comments constitute protected concerted activity under the National Labor Relations Act (“Act”), and thus, the employer could not terminate her for posting the comments.

The Act prohibits employers from taking adverse employment action against employees, regardless of whether they belong to a labor union, for engaging in protected concerted activity. Employees engage in protected concerted activity when two or more employees communicate with each other about wages, hours, and other terms and conditions of employment.  In this case, the activity involved two or more employees because co-workers responded to the employee’s comments with their own comments on Facebook.  The Board alleges that the employer’s social networking policy is overbroad because it prohibits conduct, such as communicating or conversing on Facebook, that constitutes protected concerted activity. The employer’s policy contains several sections addressing internet posting and blogging and prohibits employees from making “disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”  The Board alleges that the policy interferes with employees’ right to engage in protected concerted activity. 

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The case raises important issues about the limits of speech, conduct and the application to social networking.  We recommend that all employers review their social networking policies.  If you should have any questions regarding this case or your social networking policies, please contact us.