Are Employee Facebook Communications Protected by Labor Laws?

Social media sites like Facebook and Twitter have provided a public forum for family, friends, and coworkers to communicate easily; however, many people have sacrificed privacy for the connectivity and convenience these services provide. Unless users have activated certain privacy settings, the information they convey via postings and comments may reach readers for whom it was not intended, including employers.

See Privacy in the Workplace for more information.

If an employer views and disapproves of the work-related remarks of an employee on a social media site, can the employer take action against the employee, such as disciplinary measures or termination? According to recent cases in California and other states, labor laws protect certain employee online communications.

Employer Monitoring of Social Media Content

Employers are concerned about their online reputations and are increasingly monitoring social media sites. In fact, a 2007 Electronic Monitoring and Surveillance Survey conducted by the American Management Association indicated that 12% of employers monitored blogs and 10% checked social networks to see what was being written about them. Today, those numbers are likely much higher, as social networks have become more integral to people’s lives, both in the private and the public spheres.

Although a California court held (in Moreno v. Hanford Sentinel 172 Cal.App.4th 1125 (2009)) that information posted on social media outlets couldn't be considered private, labor laws provide protections for employee communications on such sites. Employees have the right under Section 7 of the federal National Labor Relations Act (NLRA) to participate in "concerted activities for the purpose of collective bargaining or other mutual aid or protection."

Court decisions on whether employees were illegally disciplined or fired have hinged largely on whether the online discussions at issue in the case constitute the "concerted activities" described in NLRA. Moreover, employers whose social media policies are too broad or vague may also be considered in violation of the NLRA, even if they haven't disciplined or fired employees for violating the policy, because employees might feel constrained in their ability to exercise their rights under the NLRA.

While a settlement in San Francisco, California distinguished concerted activities from individual complaints, a ruling in a Buffalo, New York case set a precedent for the type of discussions protected under NRLA. In the former case, the Regional Director of the National Labor Relations Board found that the web-based company build.com had illegally terminated an employee for alleging that the company had violated state labor codes in an online posting. The company settled, offering the employee reinstatement and back pay, and ensuring all other employees knew about their rights to discuss work-related issues online. In the latter case, a NLRB Administrative Law Judge found that the nonprofit organization Hispanics United of Buffalo had unlawfully discharged five employees who had discussed a coworker’s disparaging comment about their job performance on Facebook. The judge ruled that the employees’ discussion could be considered concerted activity within the meaning of Section 7 of the NLRA and was therefore protected.

The Hispanics United decision follows an August memorandum issued by NLRB Acting General Council making clear that the Myers Industries (281 NLRB 882 (1986) test would be used to determine the legality of a Facebook firing. Under the Myers test, the NLRB is to determine whether employee actions are protected by assessing whether the employee's complaint was a singular complaint by just one employee or whether the complaint was on behalf of or affecting other employees as well.

If other employees are affected (such as by commenting on the post), then the Atlantic Steel (245 NLRB 814 (1979) test is used to determine if the speech is protected. This test simply looks at whether the speech of the employee(s) was seen as a public disgrace to employers; if so, it isn't protected. "Public disgrace" is interpreted narrowly by the NLRB and even outright name-calling may not be considered public disgrace.

However, employees who complain on Facebook to people who are not coworkers, such as the Chicago bartender who told his sister the bar's customers were "rednecks," are not protected, nor are employees who make comments that are individual gripes, such as the Wal-Mart worker who complained about tyrannical management.

Given the nuances of these recent rulings and the evolving status of laws impacted by social media, employers and employees in California and throughout the country should stay informed to avoid the personally injurious repercussions of violating the law, whether in the form of a lawsuit or losing a job.

To learn more, see our article titled, "Can I Be Fired for Something I Posted on Facebook?"