Are Employees “Virtually Termination Proof” for Social Media Postings?

An employee was upset that the retail store she worked at stayed opened as late as it did because the store was located in an unsafe neighborhood. After the store owner did not change the hours of operation, the disgruntled employee posted on Facebook remarks about her “immature” manager and that she would bring a labor rights book to work with her the next day. She was terminated for the post.

This is not a routine “employee fired for social media post in violation of Section 7 rights” case, though. Here, the employee’s celebratory Facebook posts after being terminated included: “Muhahahahahaha!!! So they’ve fallen into my clutches” leading one to believe she purposefully trapped the company into committing an unfair labor practice charge when it terminated her employment. According to the Board, the post was protected. According to the National Federation of Independent Businesses, which filed an amicus brief in the case, the Board’s decision renders employees “virtually termination-proof” once they complain or comment online about anything work-related, regardless of the motivation for the posting. I don’t think employees are termination-proof, but it sure does appear that way.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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