Do you believe in the saying that “bad things come in threes?” Well, at least for employers, that saying rings true this week given the announcement that the National Labor Relations Board (“NLRB”) has filed a third labor law complaint related to adverse employment actions allegedly based on Facebook postings by employees. The increasing frequency with which the NLRB is seeking to enforce its stance on Facebook postings is further reason for employers to consider adopting carefully drafted social media and technology policies, related policies on solicitation and distribution in the workplace, and to tread carefully when gathering or acting on data posted by employees online.
On May 24, 2011, the NLRB announced that it had filed a complaint against Knauz BMW, a Chicago-area car dealership, for wrongfully terminating a sales employee after he criticized the company on his Facebook page. Apparently, the sales employee felt the dealership had negatively impacted sales potential by serving low-end food and drinks at an event promoting a luxury BMW, and the employee posted critical comments and supporting photographs on Facebook. The employee was subsequently fired, and the NLRB is challenging the termination as violating the employee’s Section 7 labor law rights to engage in “protected concerted activity.” Other employees of Knauz BMW had access to the Facebook page in question.
We’ve mentioned the NRLB’s earlier two complaints in previous blog posts and in our firm newsletter. To briefly recap, the NLRB filed its first Facebook complaint last year against American Medical Response (“AMR”), a unionized Connecticut employer, alleging that AMR wrongfully fired an employee whose request for union representation in a meeting was denied and who later complained about her supervisor on Facebook. The NLRB maintained that the employee’s actions were protected under Section 7 of the National Labor Relations Act (“NLRA”), which protects employees engaging in concerted activity for purposes of collective bargaining or other mutual aid or protection regardless of whether a workplace is unionized. The NLRB also maintained that AMR’s social media policy, which prohibited disparagement of AMR, interfered with Section 7 rights. The AMR complaint was settled before a decision was reached.
As mentioned earlier this week by my colleague Bryan Seiler, the NLRB subsequently filed a second complaint on May 9, 2011, against a non-unionized New York non-profit employer for discharging five employees based on statements made on Facebook about their work efforts. While the NLRB maintains that the employees’ posts were protected concerted activity, the New York employer apparently maintains it fired the employees for harassing a co-worker. It is not clear whether the employer was seeking to address unlawful harassment based on protected class status (such as gender, race, age, etc.) or whether the employer was trying to address some of other form of “harassment” that might not be unlawful. If the employer was trying to address it legal obligations to prevent protected class-based discrimination or harassment, the employer’s defense may raise interesting issues given an employer’s obligations to comply with labor law, but also to prevent and respond to unlawful harassment and discrimination in the workplace.
In addition to this trio of complaints, there have been news reports that the NLRB may bring additional complaints and a recent blog post claims there are currently 15 non-NLRB lawsuits pending over Facebook firings. All of this activity reinforces the need for employers to take great care to comply with the law in adopting and implementing social media and technology policies, gathering online data, and deciding whether and how to act on online data. Among other steps, an employer may want to include clear language in social media and technology policies that nothing in the policy is meant to contradict or interfere with employees’ legal rights, including but not limited to Section 7 rights under the NLRA.