An employee comes home from work feeling frustrated and annoyed, as many of us often do, and logs on to Facebook. While on Facebook, she posts comments accessible by her hundreds of Facebook “friends” detailing all the reasons she dislikes her job—from incompetent management to annoying co-workers to lackluster benefits and low pay. The next day, the employee’s supervisor addresses her Facebook comments and takes disciplinary action. Was this lawful?
This is a simplified version of what currently faces many employers and employees using social media, and the best answer available is that it depends. As social media continues to gain in popularity and usage at unprecedented rates, employers are seeing an ever-increasing blurring of professional and personal lives online. It is not uncommon today to see individuals discuss work-related issues, complain about their jobs, or engage in conversations on social media sites with co-workers and non–co-workers alike that traditionally have been confined to work break rooms. But for every action there is a reaction. Understandably, employers may be concerned about their organizations’ image, potential exposures to liability, and the nature of certain conduct. Sometimes this leads to employee disciplinary action.
Terminations due to actions on social media sites, commonly referred to as “Facebook firings,” have been gaining widespread attention over the past year, including from the National Labor Relations Board (NLRB), the federal agency charged with enforcing the National Labor Relations Act (NLRA). Facebook firings may implicate an NLRA provision that protects employees’ rights to discuss matters affecting their employment in certain situations. However, the intersection between social media and labor and employment law where these cases meet is an uncharted road that the law has only recently started navigating. While posting every minutia of our lives to networks that potentially tap into millions of people online seems commonpla