Trash Talking the Boss Online: What Employers Need to Know Before Terminating for Social Media Misconduct

Okay, employers - pop quiz:
 
You own a sports bar and restaurant.  One of your employees is mad when she finds out that she owes additional money in taxes.  She claims you didn’t withhold enough of her earnings.  She posts on Facebook: “Someone should do the owners of (your restaurant) a favor and buy it from them.  They can’t even do the tax paperwork correctly.”  One of your bartenders comes along and comments on the post, saying that she too owes taxes and calls you (the owner) “such an a**hole.”  Then your cook chimes in and “likes” the original comment.   (Triple Play Sports Bar & Grille v. NLRB).
 
Q: Who can you fire and why?

A: You can’t fire any of them.  And if you do, you’re violating federal labor law. 
 
Most employers are surprised to learn that they have little control over what their employees post about them on social media.  Generally speaking, private employers are the kings of their castles.  They have the right to control what is said and done within their workplaces because the First Amendment doesn’t apply.  But the National Labor Relations Act (NLRA) provides an exception for employees to engage in what’s called “protected concerted activity” – a vague term defined as “taking action for their mutual aid or protection regarding terms and conditions of employment.”  As a practical matter, it means employees getting together to talk trash about their jobs.   
 
The origin of the law provides some context.  It was enacted back in 1935 to protect workers from retaliation for engaging in collective bargaining during the Great Depression; a time when employees often worked long hours in unsafe conditions.  What many employers don’t realize is that the NLRA applies to both union and non-union workers, and that while times have changed, the law has not –  the NLRA protects the rights of employees to discuss the terms and conditions of their employment, even those that take place on social media.
 
The NLRA is all about power in numbers, so for activity to be concerted, it has to involve either two or more employees, or one employee acting on behalf of others.  A single employee’s personal gripe – like the time the Walmart employee posted that his boss was a “super mega p*ta” – won’t be considered concerted activity if nobody else jumps on the bandwagon. (Walmart, Case No. 17-CA-25030) 
 
Even though it’s construed broadly, not all concerted activity is protected.  Employers do have the power to prohibit posts that are patently false, reveal privileged information, harass others or contain threats of violence.  
 
It’s important that employers understand protected concerted activity and factor it into their social media and discipline policies.  Develop a common sense approach to social media use with guidelines that do not, in any way, interfere with your employees’ rights to express their personal opinions or communicate with each other about their jobs.  Remember that protected concerted activity is extremely fact specific.  Take the time to investigate each situation thoroughly and ensure that any discipline is consistent with federal law. ​