by David Gobeo of Drawnlines Politics.
The general rule for employment is that a company’s employees are at-will: they can quit without providing any notice and the company can similarly fire an employee for any reason or no reason at all. Every federal, state, and local law modifying this at-will relationship is an exception to the rule. For example, a company may not terminate an employee based on factors such as race or gender. Similarly, federal law prohibits employers from interfering with an employee’s right to form or join a union.
Furthermore, Section 7 of the National Labor Relations Act even protects employees from retaliation for engaging in “concerted activities” for the purpose of bargaining collectively. Relying on this Section, the National Labor Relations Board has recently filed a complaint against a company for firing an employee based on her Facebook posts. The employee had criticized her supervisor on Facebook, and the Board considered the posting to be “concerted activity” because other employees posted their own support for the comments.
This recent development is a clear sign of the new Board’s goal of broadening enforcement of the Act at the expense of management rights. In addition to the throngs of plaintiffs’ attorneys clawing to sue companies, the current administration in Washington has also increased funding to a number of agencies which investigate and prosecute charges against employers for alleged labor violations. Despite enjoying a decade largely free of major employment law changes or overeager enforcement, the next few years offer a number of legal pitfalls for the employer who continues to say: “But that’s how we’ve always done it!”
While companies have generally had the freedom to create social media policies designed to protect confidential information and to watch for defamatory comments, employers would be wise to carefully review social media-based employment decisions (as well as overbroad policies). Potential liability stemming from the direction of the current labor Board, in addition to the possibility of uncovering information relating to other protected categories such as disability or marital status, means that navigating employment decisions dealing with social media have now become increasingly risky for companies.