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The NLRB has initiated several actions against employers who have taken employment actions based on an employee’s use of social media, but it has also refused to take action where it determined an employee’s behavior didn’t constitute protected activity.

(See also, “NLRB takes aim at social media”)

• In February, the Board settled charges with a Connecticut ambulance company that fired an employee for criticizing her supervisor on her Facebook page. In its complaint, the NLRB claimed that American Medical Response of Connecticut violated federal law because the employee was engaged in protected activity when she posted the comments about her supervisor.

Under the terms of the settlement, the company agreed to revise its social media policy to “ensure that [it does] not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that [it] would not discipline or discharge employees for engaging in such discussions,” according to the NLRB.

• A reporter with the Arizona Daily Star filed a charge with the NLRB after he was terminated for tweeting comments about his employer. Newspaper employees were encouraged to use social media in an effort to drive readers to its site, and the employee’s tweeting was done using his work computer and company-provided cell phone. The employee’s Twitter account was linked to his Facebook and MySpace pages so that when he tweeted, the message was posted on the other sites as well.

Although the employee was warned about making comments critical of the Daily Star’s television staff, he tweeted things like: “What?/?/?/? No overnight homicide? WTF? You’re slacking Tucson,” in his capacity as a public safety reporter.

The NLRB Division of Advice said the employer’s actions did not violate the NLRA because the employee did not engage in protected concerted activity and was instead discharged for misconduct.

The decision not to take action makes sense, said Brian Hall, a partner at Porter Wright in Columbus, Ohio who focuses on employment law issues.

“The reporter was really tweeting things that by almost anybody’s definition were offensive and did not implicate the workplace,” he said.

• The NLRB filed a complaint against Hispanics United of Buffalo after five employees of the nonprofit were fired over Facebook postings.

According to the complaint, an employee posted to her Facebook page allegations by a co-worker that employees did not do enough to help the organization’s low-income clients.

Other employees responded to the initial post by defending their job performance and complaining about their workload and staffing issues. According to the NLRB, Hispanics United terminated the five employees who responded to the initial post, claiming that their comments constituted harassment of the first employee.

In its complaint, the NLRB said the Facebook discussion was “protected concerted activity … because it involved a conversation among co-workers about their terms and conditions of employment, including their job performance and staffing levels.”

• Most recently, the NLRB filed a complaint after a Chicago area BMW salesman was terminated for a Facebook post criticizing the quality of food and beverages at a dealership event.

The salesman complained that sales commissions would suffer as a result of the sub-par event, which was held to promote a new BMW model. He went on Facebook, posting pictures and commenting about how only hot dogs and bottled water were offered to customers who attended the event. A manager asked the salesperson to remove the posts (which were accessible by other employees), and although he immediately complied, he was terminated, according to the Board.

The employee’s Facebook posting was a protected concerted activity, the NLRB said in a press release, “because it involved a discussion among employees about their terms and conditions of employment, and did not lose protection based on the nature of the comments.”

This action “troubles me the most,” said Hall, who is also the author of the Employer Law Report blog. To reach a protected concerted activity, “you have to connect A to B to C to D,” eventually leading from hot dogs to sales commissions, he said.

– Correy Stephenson

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