There is a new buzzword in the HR world: Facebook firing. These firings, where employees are terminated for posting objectionable content on social media, are increasingly common. However, the National Labor Relations Board (NLRB) has determined in some instances that some postings are protected, which can result in a reversal of the firing under the National Labor Relations Act: The employer then gets an unfair labor practice charge, and the employees are reinstated with full back pay. Employers, approach with caution.

Cases in point

The NLRB got involved when an ambulance company fired an employee after she made Facebook posts that referred to a supervisor as a “scumbag” and added, “love how the company allows a 17 (company code for a psychiatric patient) to become a supervisor.” Coworkers chimed in on Facebook with sympathetic posts, which helped the NLRB reach the conclusion that the disgruntled employee had engaged in protected activity under the NLRA. Result: The employer settled the case.

In another case, a nonprofit employer fired five workers who posted complaints on Facebook about their coworker Lydia Cruz-Moore, who accused them of not doing enough for clients.

Cruz-Moore saw the Facebook complaints and told management that she was being slandered. The five employees were fired. However, the NLRB ruling stated that the postings, made on personal computers outside the office, were a part of a group action to defend against accusations of poor job performance.

Result: The five employees were reinstated with full back pay.

The NLRB took a different approach in a case involving a health-care industry employee who invited a group of Facebook contacts to a social event. During the chain of Facebook messages, the employee berated her supervisor, saying she should “back the freak off.” The employee followed that post and wrote, “FIRE ME. … Make my day.” Her employer fired her. The employee claimed an unfair labor practice charge under the NLRA and took the case to the board. Result: The NLRB upheld the termination.

The NLRB Associate Counsel said that the charging party had “merely expressed an individual gripe rather than engaging in a discussion of shared concerns.” He went on to characterize the Facebook comments as personal contempt rather than a shared discussion of the terms and conditions of employment.

Lessons learned

In light of the potential pitfalls of Facebook firings, employers should consider giving employees a notice that the company reserves the right to monitor social network and blogging posts.

Employees who are aware that the company can see their digital activities may avoid negative social media usage. Additionally, employees should know that they are not allowed to speak for the company unless authorized.

Consider social media training annually, so employees can understand expectations, and cyber disasters can be avoided.

• REMIND employees of the dangers of posting negative or confidential company information.
• TEACH employees how to properly set privacy settings.
• CLEARLY COMMUNICATE penalties for breaking company policies, such as anti-harassment and confidentiality policies.
• REMIND employees that the responsibility to uphold company policies extends to activity on social media.

Information for this story provided by Armstrong Teasdale LLP and Ogletree Deakins law firms.