Butler Medical Transport had a social media policy that provided, “I will refrain from using social networking sites which could discredit Butler Medical Transport or damage its image.” After being terminated, an employee posted on Facebook that she believed her termination was unjust. A still-employed employee responded, “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court… You could contact the labor board too.” The employer then fired that employee for making those comments.
The National Labor Relations Board ruled that the discharge violated the Act because 1) the exchange was concerted (i.e. involved group activity); 2) the comments were made for the mutual aid and protection of workers; and 3) the discharge was made pursuant to the unlawful social media policy.
I say this a lot, thankfully Member Miscimarra dissented. He found the Facebook comments were not concerted activity and thus not protected by the National Labor Relations Board. He continued, by opining that the Board’s approach to social media cases has yielded “absurd” results. Circuit Courts agree here and here.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.