Facebook Postings May be Protected Speech

Posted by BAS - 14 May, 2015

header-picture

The National Labor Relations Board recently held that a catering company in New York City violated the National Labor Relations Act when it terminated an employee for an obscene Facebook post about a supervisor. 

In the case, employees of Pier Sixty, LLC attempted a unionization campaign. The employees had concerns that management spoke to them in a disrespectful and undignified manner.  

Two days before the union certification election, a supervisor spoke harshly to an employee. The employee posted a Facebook comment, criticizing the supervisor with obscene language. 

The employer found out about the post, investigated, and terminated the employee on the basis that his Facebook comments violated the company’s harassment policy. The employee filed an unfair labor charge. 

An administrative law judge determined that the Facebook postings were protected under the NLRA, and the Board upheld the ruling. The Board identified the following factors to determine if obscene posts can be protected by the Nation Labor Relations Act: 

  • if the employer had a record of antiunion hostility
  • if the employer provoked the employee’s conduct
  • if the conduct was impulsive or deliberate
  • the location of post
  • the subject matter of the post
  • the nature of the post
  • if the employer considered the language offensive
  • if the employer had a rule prohibiting the language
  • if the punishment was typical. 

Going forward, employers should think twice before taking action based on an employee’s social media post.

 


Recent Posts

Question of the Week - Allergy Medicine

read more

New Guidance on Tracking Technologies and HIPAA

read more

Enhancing Benefits Administration Efficiency: MyEnroll360's New Hire Waiting Period Management

read more